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2005 DIGILAW 343 (CHH)

ORIENTAL INSURANCE CO. LTD. v. POORANLAL

2005-11-16

DHIRENDRA MISHRA

body2005
( 1 ) THE appellant/insurance company has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (for brevity 'the Act of 1988') as he is aggrieved by the award dated 5-11-1999 passed by the IIIrd Additional Motor Accidents Claims Tribunal, Durg in Claim Case no. 16/95 whereby compensation of Rs. 20,000/- in favour of the claimant/respondent No. 1 towards damages caused to his vehicle in the motor vehicle accident was awarded. ( 2 ) BRIEF facts necessary for adjudication of this appeal are that respondent No. 1 is the owner of matador 407 bearing registration No. M. P. 24-C/1592 which was insured with the appellant. On 18-11-1994 when the insurance policy of the said vehicle was in force, the vehicle was involved in an accident and was severely damaged. An offence under Section 304-A of the Indian Penal code was registered against respondent No. 2. The claimant/respondent No. 1 preferred an application under Section 166 of the Act of 1988 claiming compensation for a sum of rs. 61,428/- for damages caused to his vehicle. The appellant denied the claim of the claimant and raised preliminary objection in his reply, that the application was not maintainable at the instance of the claimant who is the owner of the vehicle and the accident occurred when the same was being driven by the driver appointed by the claimant/respondent No. 1 and as such the application for compensation is not on behalf of the third party and therefore, the same is not maintainable and it should be summarily rejected. ( 3 ) LEARNED Claims Tribunal on the basis of the pleadings of the respective parties framed the following issues; 1) Whether the accident occurred on 18-11-1994 at about 19. 30 hours near village-Phunda as the driver of the vehicle was trying to save the deceased Rampyare who was plying his bicycle under drunken state on the wrong side of the road and in the said accident the vehicle in question was damaged? 2) Whether the claimant/respondent No. 1 is entitled to recover the damages caused to the vehicle from the appellant/insurance company and respondent No. 2 and if yes then to what extent? 3) Relief and cost? 2) Whether the claimant/respondent No. 1 is entitled to recover the damages caused to the vehicle from the appellant/insurance company and respondent No. 2 and if yes then to what extent? 3) Relief and cost? ( 4 ) LEARNED counsel for the appellant has challenged the impugned award only on the sole ground that the claims Tribunal has no jurisdiction to entertain the claim petition filed by the owner of the vehicle as the conjoint reading of Sections 165 and 166 of the Act of 1988 goes to show that the claim in respect of the damages to the owner/insured does not lie before the claims Tribunal. In support of his contention, he places his reliance in the matter of National Insurance Co. Ltd. v. San tosh Kumar, reported in 2001 ACJ 449 : (2001 AIHC 1467 ). ( 5 ) ON the other hand, learned counsel for claimant/respondent No. 1 submits that on the application for compensation on behalf of other claimants arising out of the same accident, award was passed by the claims Tribunal and the Insurance Company challenged the above award by way of appeal in the High Court and the same was rejected by the High Court and subsequent s. L. P. preferred by the Insurance Company was also rejected by the Hon'ble Supreme court. He further submits that no issue was framed by the Claims Tribunal regarding maintainability on the above ground and the appellant has not adduced any evidence in support of its contention and as such the evidence adduced by the claimant stands unrebutted. Therefore, in the aforesaid circumstances, no interference is called for in the impugned award passed by the learned claims Tribunal. It is further argued that the accident took place approximately nine years before and the appellant has deposited only rs. 10,000/- towards the amount of compensation which has been received by the claimant. He further submits that if the instant appeal is allowed on the technical grounds raised by the appellant, then the claimant shall be remediless to recover damages caused to his vehicle from the appellant after a lapse of nine years and thus in such peculiar circumstances, the appeal preferred by the appellant is liable to be dismissed. ( 6 ) I have heard learned counsel for the parties. ( 6 ) I have heard learned counsel for the parties. ( 7 ) THE only issue that is to be decided by this Court is as to whether the claim petition preferred by the owner/insured for compensation towards damages to his vehicle under Section 166 of the Act of 1988 is maintainable or not. ( 8 ) TO appreciate the rival submissions advanced by the parties, it could be appropriate to refer to the relevant part of Sections 165 and 166 of the Act of 1988 which reads as under; "165. Claims Tribunals.- (1) A State government may, by notification in the Official Gazette, constitute one or more Motor accidents Claims Tribunals (hereinafter 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. " "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 authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. " ( 9 ) THUS from the conjoint reading of Sections 165 and 166 of the Act it is manifestly clear that only third party can prefer claims for compensation in respect of accidents involving the death of or bodily injury to, person arising out of use of motor vehicle, or damages to any property. It is not disputed that the instant application was preferred by respondent No. 1 /claimant who is also insured owner of the vehicle and as such he is not the third party and thus the claim petition at his instance cannot be maintained. It is not disputed that the instant application was preferred by respondent No. 1 /claimant who is also insured owner of the vehicle and as such he is not the third party and thus the claim petition at his instance cannot be maintained. ( 10 ) IN the matter of National Insurance company Ltd. (Supra), the learned single judge of the M. P. High Court referring to paragraph 10 of the decision of Division bench of the same High Court in the matter of New India Assurance Co. Ltd. v. P. N. Vijaiwargiya, reported in 1992 ACJ 312 : (AIR 1992 MP 122) came to the conclusion that only a third party can maintain an application in respect of damages to the property before the Accidents Claims Tribunal. Paragraph 10 of the said judgment is being reproduced hereunder; (10) The claim for compensation in respect of accidents involving the death or bodily injury may relate to the insurance and/or third person. However, the claim for compensation involving damage to any property to be entertainable before the Claims tribunal must relate to a third party only and not the insured. The proviso provides for an option lying with the claimant. Where claim for compensation in respect of damage to property exceeds rupees two thousand which would necessarily be of a third party (and not the insured), the claimant may have it adjudicated upon by the Claims tribunal or may have it referred to a civil court for adjudication. Where the claim does not exceed rupees two thousand it has to be tried by the Claims Tribunal. Section 110-F bar's the jurisdiction of civil Court where the claim is entertainable by a Claims Tribunal and a Claims Tribunal has been constituted for that area. " ( 11 ) FROM the aforesaid enunciation of law it becomes crystal clear that only a third party can maintain an application in respect of damages to the property before the Accidents Claims Tribunal. As far as the owner/ insured is concerned, he cannot maintain an application in respect of claim of his'own damages under Section 166 of the Act. ( 12 ) THE learned Claims Tribunal has not decided the legal objections raised by the appellant in the impugned judgment and as such the award passed by the learned Tribunal is indefensible and is accordingly set aside and the appeal is allowed. ( 12 ) THE learned Claims Tribunal has not decided the legal objections raised by the appellant in the impugned judgment and as such the award passed by the learned Tribunal is indefensible and is accordingly set aside and the appeal is allowed. ( 13 ) IT is made clear that the respondent no. 1/claimant shall be at liberty to initiate appropriate proceedings available under the law for recovery of the damages caused to his vehicle and the instant judgment shall not come in his way. Appeal allowed. --- *** --- .