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2003 DIGILAW 547 (CAL)

MONOWARA BIBI v. NEW INDIA ASSURANCE CO. LTD.

2003-11-11

ALOKE CHAKRABARTI, SADHAN KUMAR GUPTA

body2003
SADHAN KUMAR GUPTA, J. ( 1 ) THIS appeal has been preferred against the judgment and order dated 13. 12. 2001 passed by the Judge, Motor Accidents Claims Tribunal, 4th Court, Midnapore in M. A. C. Case No. 456 of 2001. The case of the appellants is that on 18. 3. 2001 at about 6. 30 p. m. one Sk. Amiruddin was returning home by his motor cycle bearing No. WB 34-D 4456. At that time a truck came from the opposite direction with high speed and dashed against the said motor cycle and as a result of that he sustained severe injuries and died on the spot. The accident took place due to rash and negligent driving of the said truck. As the offending truck could not be traced out, so the owner and insurer of the said vehicle could not be made parties to the present proceeding. The petitioners being the wife, children and parents of the deceased have filed an application under Section 140 of Motor Vehicles Act praying compensation to the extent of Rs. 50,000 against the opposite party New India Assurance Co. Ltd. on the basis of no fault liability. ( 2 ) DURING the hearing the petitioners filed the copy of the F. I. R. , final report, insurance policy, post-mortem report as well as the driving licence of the deceased. The learned Tribunal after considering all the materials on record rejected the claim application. Being aggrieved and dissatisfied with the said finding of learned Tribunal, present appeal has been preferred. It has been contended by learned advocate for the appellants that Claims Tribunal was not at all justified in rejecting the claim application. It may be pointed out here that the applicants failed to implead the owner and insurer of the offending truck which actually caused the accident. The learned advocate for the appellants argued that it is a settled principle of law that the petitioners can claim compensation from either of the vehicles which were involved in the accident. As such, he argued, that there is nothing wrong in impleading the insurer of the motor cycle in question so far as the present case is concerned and as such the said insurance company is liable to pay the interim compensation to the claimants. As such, he argued, that there is nothing wrong in impleading the insurer of the motor cycle in question so far as the present case is concerned and as such the said insurance company is liable to pay the interim compensation to the claimants. As against this, the learned advocate for the insurance company argued that the very basis of awarding compensation against the insurance company to a particular party is to indemnify the owner of a vehicle which caused the accident, in respect of the amount which he is to pay to the heirs of the victim. In order to avail this benefit it must be shown that there was a contract in between the parties to that effect. If we look into the insurance policy then it will appear that in fact there was a contract in between the insurance company and the owner of the motor cycle in question to the effect that the insurer would compensate the third party if it suffers injury or death in a motor accident. Insurance company in effect has insured the liability of the insured to pay compensation to the third party in case of a motor accident involving the vehicle of the insured and by the said contract the insurance company did not in effect insure the insured, i. e. , the owner himself. The owner of the vehicle in question cannot in any way be treated to be the 'third party' which is the very basis of awarding compensation in a motor accident case. The insurance company is not liable to pay any compensation to the owner in case he himself suffers injury/death as a result of the motor accident involving his own vehicle. To get any compensation the owner is to take recourse to a Personal Accident Insurance Policy in order to cover his claim. The policy which has been issued in favour of the deceased/owner of the vehicle was not issued to the owner in order to protect him from personal accident and it cannot be said under any stretch of imagination that it was a Personal Accident Insurance Policy and as such it does not cover such liability. We have already pointed out that as per provisions of Motor Vehicles Act insurance company is liable to indemnify the owner in case of an accident which has caused injury/death to a third party. We have already pointed out that as per provisions of Motor Vehicles Act insurance company is liable to indemnify the owner in case of an accident which has caused injury/death to a third party. So in an insurance contract the insurer is the first party and the insured is the second party. Other than the insurer and the insured every person is a third party. So it is very clear, so far as the present case is concerned that the deceased who was the owner of the motor cycle in question cannot be equated with the expression 'third party'. As such, in our considered opinion the deceased cannot get the benefit of the insurance policy claiming himself to be a 'third party' as envisaged in Motor Vehicles Act. In this respect learned advocate for the respondent has referred to the decisions reported in United India Insurance Co. Ltd. v. Darshan Kaur, 2001 ACJ 998 (Pandh); New India Assurance Co. Ltd. v. Dharam Singh Bhai, 2004 ACJ 1998 (Rajasthan); National Insurance Co. Ltd. v. Nirmala Bai, 2000 ACJ 932 (Rajasthan); New India Assurance Co. Ltd. v. Babasaheb Anna Mali, 2002 ACJ 642 (Bombay); Usha Jain v. United India Insurance Co. Ltd. , 1997 ACJ 1311 (MP); National Insurance Co. Ltd. v. Faqir Chand, 1996 ACJ 111 (Jandk) and New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC ). ( 3 ) WE have considered all those decisions as referred by the learned advocate for the respondent and it appears that in all those decisions the words 'third party' as mentioned in the Act have been clearly discussed and it appears from those decisions that there is no scope for describing the owner of a particular vehicle which met with the accident to be considered as 'third party' as envisaged under Motor Vehicles Act. ( 4 ) LEARNED advocate for the appellants argued that there is no bar for an owner of a particular vehicle in getting compensation from the insurance company in case he personally met with a motor accident. In order to establish his point he has cited decisions reported in Harshvardhatiya Rudraditya v. Jyotindra Chimanlal Parikh, 1981 ACJ 277 (Gujarat); New India Assurance Co. In order to establish his point he has cited decisions reported in Harshvardhatiya Rudraditya v. Jyotindra Chimanlal Parikh, 1981 ACJ 277 (Gujarat); New India Assurance Co. Ltd. v. Satyanath Hazarika, 1989 ACJ 685 (Gauhati); Tathagata Satapathy v. Raghunath Mohapatra, 1989 ACJ 891 (Orissa); Kailash Kumar v. Bhola, 1989 ACJ 845 (Pandh) and Daljit Sawhney v. Jagtar Singh, 1986 ACJ 381 (Delhi ). We have considered all those decisions. It appears to us that all those decisions are not at all relevant for the purpose of the present hearing. There is nothing in those decisions in order to show that an owner of a particular vehicle is entitled to get the benefit of the insurance policy as a third party also. As such, we are of the opinion that those decisions are not at all relevant for the purpose of this hearing and it will not help the cause of the appellants at all. Learned advocate for the appellants argued that as it is a proceeding under Section 140 of the Motor Vehicles Act, 1988, so on the basis of no fault liability the compensation amount should be awarded in favour of the heirs of the deceased. But we cannot agree with this argument. Simply because in a proceeding under Section 140 of the Motor Vehicles Act, interim compensation amount is to be awarded on the basis of no fault liability, it cannot be said that even if the insurance company is not liable according to the Act, then also the said company is to be directed to pay the interim compensation to the heirs of the deceased. It is not permissible as per provisions of the Motor Vehicles Act. ( 5 ) THE learned advocate for the appellants argued that where two vehicles are involved in a motor accident causing death to a person, then the heirs of the deceased can recover the compensation amount from either of the insurance company of the offending vehicles. But so far as the present case is concerned, the owner and insurer of the other vehicle have not been impleaded as party in connection with this case. So question of realising the compensation amount from the said owner and insurance company does not arise at all. But so far as the present case is concerned, the owner and insurer of the other vehicle have not been impleaded as party in connection with this case. So question of realising the compensation amount from the said owner and insurance company does not arise at all. So far as the present case is concerned, it has already been pointed out that the deceased was not a 'third party' as provided in the Motor Vehicles Act and as such, the heirs of the said deceased are not entitled to get compensation from opposite party insurance company of the motor cycle in question as the policy in question does not entitle the owner of the vehicle to get compensation in case of his personal injury or death. As such, this argument is rejected. ( 6 ) LASTLY, the learned advocate for the appellants argued that the heirs of the deceased have claimed compensation as per Chapter X of the Motor Vehicles Act as provided in Section 140 of the said Act. At the time of argument he drew our attention to the provisions of Section 144 which reads as follows: "the provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force". By referring to the said section learned advocate for the appellants argued that as he has filed the documents as mentioned under Section 140 of Motor Vehicles Act in order to prove the death of the deceased in a motor accident, so, there is no other alternative but to award the interim compensation in favour of the heirs of the deceased in view of the provisions of Section 144 of Motor Vehicles Act. We regret, we cannot agree with this argument. Unless and until it is proved that the insurance company is liable to pay the compensation as per the contract, the question of paying any compensation amount by it does not arise at all. In absence of any such contract it cannot be said that even in spite of that the insurance company is liable to pay the interim compensation, as argued by the learned advocate for the appellants. As such, this contention is also rejected. In absence of any such contract it cannot be said that even in spite of that the insurance company is liable to pay the interim compensation, as argued by the learned advocate for the appellants. As such, this contention is also rejected. ( 7 ) THEREFORE, from our discussion we are of opinion that the claimants being the heirs of the deceased owner of the motor cycle in question which was involved in the accident, are not entitled to get any compensation as per the provisions of the Motor Vehicles Act and as per the insurance policy which was issued in favour of the deceased. In this respect we fully agree with the finding of learned Tribunal. Considering all these things we are of opinion that there is no merit in the present appeal and as such the same is dismissed. The judgment as passed by learned Tribunal is confirmed.