A. K. GOHIL, J. ( 1 ) APPELLANT-CLAIMANT has filed this appeal under section 173 of the motor Vehicles Act (for short 'the Act')against the award dated 7. 7. 1999 passed by Second Additional Motor Accidents claims Tribunal, Mandsaur in Claim Case no. 226 of 1997, by which the Tribunal has dismissed the claim on the ground that he has already received compensation for the damage of his jeep from his own insurance company. ( 2 ) UNDISPUTEDLY, the brief facts of the case are that on 8. 6. 1996, while claimant was going from Neemuch to Mandsaur in his own Commander jeep bearing registration No. MP 14-5862, near Malhargarh one truck No. CPF 9907 which was being driven by respondent No. 2 Omprakash, rashly and negligently, came from opposite side and dashed the jeep. The claimant as well as the persons travelling in the jeep sustained injuries and the matter was reported to P. S. Malhargarh. Thereafter, the injured-claimant aged about 40 years was admitted in the District Hospital, Mandsaur where he remained for more than a week. In the claim petition his submission was that on account of the injuries received by him in the accident his arm was fractured and thereafter he was operated at Satya sai Institute of Higher Medical Science, anandpur (Andhra Pradesh ). His Commander jeep which met with accident was also fully damaged. He filed a claim petition seeking compensation for the damage of his jeep as well as his injuries. The claim was contested by the insurance company. After recording the evidence of both the parties, Tribunal has recorded a positive finding about the rash and negligent driving of the truck by its driver and also about the accident. But the Claims Tribunal has found that the claimant has failed to prove his injuries sustained in the accident. The claims Tribunal has further found that the insurance company of the jeep was also necessary party in the petition before the tribunal. Learned Tribunal dismissed the claim petition on the ground that claimant failed to prove the injuries sustained by him in the accident. The Claims Tribunal also did not award any compensation for the damage of Commander jeep on the ground that the claimant is admitted to have received the compensation of about rs. 50,000 in full and final settlement from the insurance company with which the jeep was already insured. The Claims Tribunal also did not award any compensation for the damage of Commander jeep on the ground that the claimant is admitted to have received the compensation of about rs. 50,000 in full and final settlement from the insurance company with which the jeep was already insured. The Tribunal has further found that both the drivers of the jeep and the truck were liable for the accident, therefore, the negligence in driving the vehicle was also assessed in the ratio of 40:60. The Tribunal has also held that as the claimant was the owner and the driver of the aforesaid Commander jeep, the insurance company of the jeep ought to have been made necessary party in the claim petition. It has also come in the evidence that since the driver of the jeep was also negligent up to 40 per cent, the claims Tribunal restricted the liability of the insurance company up to 60 per cent but has not awarded any compensation up to that limit. ( 3 ) 1 have heard Mr. Vijayavargiya, the learned counsel for appellant and Mr. H. G. Shukla, learned counsel for respondent no. 3, insurance company. ( 4 ) THE submission of counsel for the appellant is that Tribunal has not properly appreciated the evidence on record and has wrongly rejected the claim petition. It was further submitted by the counsel for the appellant that though the claimant has not produced any treatment papers or any evidence about his hospitalisation, nor examined any doctor, but in the F. I. R. Exh. P-17, it has been clearly mentioned that he has sustained injuries in the accident in question. As per the discharge ticket, Exh. P1, produced by claimant himself he was admitted in District Hospital, Mandsaur on 9. 6. 1996 and was discharged on 14. 6. 1996. I have perused Exh. P-1, in which it has been mentioned that it is a known case of rhd and the claimant was admitted for the treatment of myalgia (chest), but in the discharge certificate it has not been mentioned that he had received any injury in the accident nor has produced any medical paper to that effect to prove that what kind of injury he had received in the accident. Therefore, in the absence of any medical evidence, M. L. C. report as well as any specific injuries received in the accident, the Tribunal has rightly rejected his claim for compensation. ( 5 ) THE further submission of the counsel for the appellant was that the Tribunal has wrongly rejected his claim petition on the ground that the insurance company with which the jeep was insured was not made party in the claim petition and that he had already received compensation from his own insurance company towards full and final settlement. His further submission was that as per the report Exhs. P-9 and p-10, prepared by the surveyors of the insurance company the vehicle was badly damaged in the accident. It has also come in the evidence that the accident took place on 8. 6. 1996 and the vehicle was registered on 24. 4. 1996, therefore, admittedly, it was a new vehicle. As per the surveyors' report exh. P-10, the loss to the said jeep was assessed at Rs. 95,000, the market value of the jeep on the date of the accident was rs. 2,35,000, the expected salvage was valued at Rs. 1,40,000, therefore, net loss was assessed at Rs. 95,000 by the insurance company. The vehicle was hypothecated with Punjab National Bank. As submitted by the learned counsel for the appellant, the claimant has received compensation from his own insurance company towards full and final settlement of Rs. 50,000 and for the balance amount he filed the claim petition. His further submission was that though he has received compensation from his own insurance company towards full and final settlement, but for the balance amount of loss suffered by him he claimed from the offending vehicle. He also drew my attention towards the finding arrived at by the Tribunal towards the liability of the offending vehicle assessed as 60 per cent and if it is taken into consideration as such the offending vehicle is liable for payment of the rest of the loss suffered by the claimant. As per Exh. P-13, the claimant has spent around Rs. 2,65,000 on the repairs of the damaged jeep. The said vehicle was insured for a sum of Rs. 2,60,000 with the insurance company. As per Exh. P-13, the claimant has spent around Rs. 2,65,000 on the repairs of the damaged jeep. The said vehicle was insured for a sum of Rs. 2,60,000 with the insurance company. Therefore, the submission of the counsel for appellant is that claimant is entitled for the rest of the loss for damage of vehicle from the insurance company of the offending vehicle. The counsel for the respondent has supported the award passed by the Tribunal. ( 6 ) AFTER hearing counsel for the parties, the sole question arising for consideration before this court is whether the insurance company of the offending vehicle is liable for payment of rest of the compensation towards damages even if he is admitted to have received his claim from the insurance company for the damage caused to his jeep. Section 166 of the Act provides that an application for compensation arising out of an accident of a nature specified in subsection (1) of section 165 may be made, (a) by the person who has sustained the injury; or (b) by the owner of the property. Therefore, it is clear that a claim petition can be filed by the owner of the property against the offending vehicle also. In that case, if the vehicle is comprehensively insured, the owner of the vehicle may also claim compensation from his own insurance company for the loss of damage caused to the vehicle with which the vehicle is insured and may also claim compensation from the owner or insurer of the offending vehicle. Obviously, now it is clear that under section 166 of the Act, the owner of the property can also file a petition for claiming compensation for the damages to property. To answer the aforesaid question in the case of Dr. A. C. Mehra v. Behari lal, 1998 ACJ 379 (Delhi), the learned judge of Delhi High Court was of the view that the amount paid by the insurance company is paid under a separate contract between the owner and the insurer of the jeep. Tortfeasor cannot take advantage of the owner's contract with third party and the rule of subrogation is also not applicable in such cases and the right of the owner of vehicle to file a claim petition against the offending vehicle is not barred. Tortfeasor cannot take advantage of the owner's contract with third party and the rule of subrogation is also not applicable in such cases and the right of the owner of vehicle to file a claim petition against the offending vehicle is not barred. The Division Bench of Allahabad High court while dealing with almost a similar question in the case of Union of India v. Deoria Sugar Mills Ltd. , 1980 ACJ 140 (Allahabad), has also held that the plaintiff having received part of damages from his own insurance company, he was also entitled to receive damages from the Railways. In that case, it was held that the compensation of the insurance company was that of an indemnity. The railway company which caused damage to the consignee, continues to be primarily liable for the damages sustained by the plaintiff. It, not being a party to the contract of indemnity, cannot be absolved of its liability to pay the damages to consignor merely because the consignor had already received the money from the insurance company, under a contract of insurance. The Supreme Court also in the case of Union of India v. Sri Sarada Mills ltd. , AIR 1973 SC 281 , held that subrogation does not confer any independent right on underwriters to maintain in their own name and without reference to the persons assured an action for damages to the thing insured. ( 7 ) THEREFORE, from the aforesaid discussion and in the light of the decisions cited (supra), it is clear that the contract of the owner of the vehicle with its insurance company is a separate contract and if any claim is received under the said contract, the same cannot be treated as bar to claim compensation from the offending vehicle on the ground that some part of the money has already been received by the owner of the vehicle from its own insurance company. In this case, the liability of the insurance company of the offending vehicle itself is a liability against third party risk, therefore, for the rest of the amount the insurance company of the offending vehicle may be made liable and the claim of the claimant cannot be rejected solely on the ground that he has not made his own insurance company as party. I think in this case the Tribunal was wrong in dismissing the claim of the claimant. I think in this case the Tribunal was wrong in dismissing the claim of the claimant. Tribunal ought to have considered the loss of vehicle and the damages suffered by the vehicle and to have deducted the amount awarded by the insurance company of the vehicle and if the same is not awarded properly should have apportioned the liability of the offending vehicle and also its insurance company. Insurance company of the vehicle cannot say that it is a case of double enrichment or claimant is not entitled for any compensation or its liability is over because he has already received some compensation from his own insurance company. ( 8 ) I have also perused the record of this case. Though the claimant has filed bills of repairs of the vehicle as also the reports of the surveyors for loss of vehicle, but it is not known that as against the claim of rs. 50,000 whether the vehicle remained in the possession of the claimant or the same was taken by the insurance company for its full and final settlement. No doubt, the vehicle of the claimant was a new one and for the loss of new vehicle for which it was insured for Rs. 2,60,000 it cannot be said that the claim was settled by the insurance company for a sum of Rs. 50,000. It is also not known that actually how much amount was spent for repairs by the claimant. I do not see any proper evidence on record in this regard. The claimant has also not examined the surveyors of the insurance company or the owner of the garage where the vehicle was repaired nor examined any mechanic. ( 9 ) CONSEQUENTLY, this appeal is allowed and the impugned order passed by the Tribunal is set aside and the case is remanded to the Tribunal to hold an inquiry into the matter and determine the liability of the owner and the insurance company of the offending vehicle and, thereafter, to pass an award in accordance with law. Appeal allowed. .