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2007 DIGILAW 146 (CHH)

SHEELA BAI v. NEW INDIA INSURANCE CO. LTD.

2007-02-20

H.L.DATTU, V.K.SHRIVASTAVA

body2007
ORDER 1. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1983 (henceforth "the Act, 1988") against the award dated 23-12-1996 passed by Third Additional Motor Accident Claims Tribunal, Raipur (henceforth "the Tribunal") in Claim Case No.6 of 1996, whereby the claimants application has been dismissed. 2. Factual matrix of the case in brief is that on 8-2-1996 Bholaram Lahare (since deceased) who was owner of the tractor and trolley bearing registration Nos. MP-23-G-2003 & MP-23-G-2004 respectively, driving the said tractor and trolley was going to Kamardiha. On way the said tractor and trolley fell down in the canal, resultantly Bholaram sustained injuries and succumbed to those. Appellants who the wife children and mother of the deceased filed an application under Section 163A of the Act, 1988 for grant of compensation against the respondent who is the insurer of the tractor and trolley. Respondent contested the claim, inter alia, on the ground that license of the deceased was forged; without imp-leading Owner: insurer cannot be held liable for any award. Their liability extends to the death of third party and not to the death of owner. 3. Learned Tribunal after appreciation of the evidence held that Bholaram himself was negligent in driving and his death Was the result of his own negligence, Therefore, dismissed the claim. 4. Learned counsel for the appellants contended that under Section 163A of the Act, 1988, the legal representatives of owner of the vehicle are entitled for grant of compensation. 5. Admittedly, Bholaram was owner of the fateful tractor and trolley. It was not proved that owner of the vehicle has taken personal accident insurance policy. 6. The second schedule under Section 163A of the Act 1988 prescribe schedule for compensation for third party fatal accident/injury cases as is evident from the heading of the schedule itself that means schedule being part of Section 163Aofthe Act, 1988, award of compensation under Section 163A of the Act. 1988 is available to the legal representative of the third party on his death or in case of injury to injured if he is third party and none else. 7. Hon'ble the Apex Court in the case of Dhanraj Vs. New India Assurance Company Limited and another at paras 8, 9 and 10 observed as below- "8. 1988 is available to the legal representative of the third party on his death or in case of injury to injured if he is third party and none else. 7. Hon'ble the Apex Court in the case of Dhanraj Vs. New India Assurance Company Limited and another at paras 8, 9 and 10 observed as below- "8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also. 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4989 paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance." 8. From law laid down by Hon'ble the Apex Court in the case of Dhanraj (supra) and schedule II, under Section 163A of the Act, 1988 it can safely be held that legal representative of third party to an accident may claim and receive compensation from owner or insurer of the vehicle without establishing any negligence on the part of owner, on structured formula basis. The liability of Insurance Company is only to indemnify the owner of the vehicle; therefore, in absence of insurance to cover personal injuries of the owner, for the death of owner as a result of accident out of the use of motor vehicle, his legal representatives are not entitled for compensation. 9. We are of the considered view that since the deceased was owner of the vehicle and appellants failed to prove that owner of the vehicle had taken personal accident insurance policy with respondent, the appellants are not entitled to claim compensation in accordance With the provisions of the Act, 1988. 10. In the result, the appeal is dismissed. However, if appellants have any right alive under any other enactment they are at liberty to invoke it. No costs. Appeal Rejected.