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2006 DIGILAW 71 (MP)

ORIENTAL INSURANCE CO LTD v. CHOODAMANI SINGH

2006-01-10

S.L.JAIN

body2006
Judgment ( 1. ) INVOKING the appellate jurisdiction of this Court under Section 173 of the motor Vehicles Act, 1988 (hereinafter referred to as the act), the non-applicant No. 6/appellant has challenged the legality, validity and correctness of the order dated 4-4-97 passed by IV th Additional Motor Accidents Claims tribunal, Rewa, in Claim Case No. 3/96. ( 2. ) THE facts of this case, in nutshell, as have been unfolded are that the appellant is the insurer of Jeep No. MP17-B/1950 which was insured and registered as private car. The respondent No. 1 Choodamani Singh is the owner of the said jeep and it was being plied as a taxi on 26-4-93 when it met with an accident. The survey was conducted by the appellant/company. ( 3. ) IT is alleged that 11 persons travelling in the jeep died and one sustained injuries. The jeep was extensively damaged. It is alleged that the accident occurred due to rash and negligent driving of truck No. MP-17/1850 which was driven by Mahadev Prasad Chourasia and was owned by Ramakant tiwari, respondent No. 3 and Ramesh Kumar Dwivedi, respondent No. 4. The legal representatives of the deceased persons and the injured filed claim cases against the owner, driver and insurer of the truck and also against the owner and insurer of the jeep. ( 4. ) OWNER of the jeep, Choodamani Singh, the respondent No. 1 also filed a claim against the owner and driver of the truck and also against the present appellant which was the insurer of the jeep, in respect of loss caused to his jeep and demanded indemnification for loss sufferred by him because of the damage caused to the vehicle. As the claim was not accepted the owner of the jeep/respondent No. 1 preferred an application under Section 166 of the Act and claimed damages for a sum of Rs. 2,36,716/- and interest at the rate of 24 per cent per annum which, according to him, was to be indemnified by the driver, owner and insurer of the truck and also by the insurer of the jeep. ( 5. ) INSURANCE Company, the present appellant resisted the claim of the respondent No. 1 firstly, on the ground that the accident had occured because of the negligence on the part of the jeep driver and not on the part of the truck driver. ( 5. ) INSURANCE Company, the present appellant resisted the claim of the respondent No. 1 firstly, on the ground that the accident had occured because of the negligence on the part of the jeep driver and not on the part of the truck driver. In case, the respondent No. 1 wants to file claim against the appellant which was insurer of his own jeep then he should move the Civil Court and not the Claims Tribunal, constituted under Section 165 of the Act. It was also the case of the appellant that the said jeep was being used in breach of the policy conditions in so far as the jeep was a private car and insured as such, but the same was being used as a taxi for transportation of passengers and the same was the breach of the policy conditions. It was also averred that the driver of the jeep was not having a valid and effective driving licence. 5. The Tribunal rejected the contentions of the appellant and awarded compensation of Rs. Two lac against the appellant, which was the insurer of the jeep of respondent No. 1, for the damages caused to the jeep. This award of the Tribunal is a cause of grievance of the appellant. ( 6. ) I have heard Smt. Amrit Ruprah, learned Counsel, for the appellant and Shri S. Chaturvedi, learned Counsel for respondent No. 1 and perused the record of the case. None appeared for other respondents. ( 7. ) LEARNED Counsel for appellant submitted that the Tribunal has erred in law by opining that the damage claimed by the owner of the jeep is tenable before the Tribunal under Section 166 of the Act. It is also submitted by her that the Tribunal has not discussed the various provisions of the Act and passed a cryptic order which is vulnerable. ( 8. ) LEARNED Counsel for respondent No. 1 defended the impugned order. ( 9. ) LEARNED Counsel for appellant has drawn the attention of this court to Sections 165 and 166 of the Act and submitted that on a conjoined reading of these two sections it is clear that the claim in respect of the damages to the owner/insured does not lie before the Claims Tribunal. She has placed reliance on D. B. decision of this Court rendered in the case of New India insurance Co. Vs. She has placed reliance on D. B. decision of this Court rendered in the case of New India insurance Co. Vs. R. N. Vijayvargiya and others, AIR 1992 MP 122 . ( 10. ) TO appreciate the submissions advanced by Smt. Amrit Ruprah, counsel for the appellant, it is apposite to refer to relevant part of Sections 165 and 166 of the Act as follows:- "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 of the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, person arising out of the use of motor vehicle or damages to any property of a third party so arising, or both. (Emphasis supplied)Explanation :-For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to person arising out of the use of motor vehicles" includes claim for compensation under Section 140 [and Section 163a]. (2)*** *** *** *** *** "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; (c) ( 11. ) SMT. Ruprah, learned Counsel for the appellant has given immense emphasis on the language "damage to any property of a third party, so arising". ( 12. ) A perusal of Section 165 clearly reveals that the claim for compensation involving damages to any property to be entertainable before the claims Tribunal must relate to a third party only and not the insured. The owner of a vehicle cannot file a claim for damage to the vehicle insured, before the claims Tribunal though he may move the Civil Court or Consumer Rights protection Forum. In the present case, admittedly, the respondent No. 1 is the owner of the jeep which was insured by the appellant. He cannot be said to be a third party. An owner/insured cannot move an application in respect of the claim for his own damages under Section 166 of the Act. ( 13. In the present case, admittedly, the respondent No. 1 is the owner of the jeep which was insured by the appellant. He cannot be said to be a third party. An owner/insured cannot move an application in respect of the claim for his own damages under Section 166 of the Act. ( 13. ) IN view of my preceding analysis the order of the Claims Tribunal is indefensible and, accordingly, the appeal succeeds and is hereby allowed. The order impugned stands set aside, so far as it relates to respondent No. 1. However, there shall be no order as to costs. Misc. Appeal allowed.