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2007 DIGILAW 237 (MP)

United India Insurance Co. v. Sandeep Kumar Gupta

2007-02-27

ARUN MISHRA

body2007
ORDER Arun Mishra, J. 1. This appeal has been preferred by the insurer aggrieved by the award which is dated 11-4-1997 passed by the Motor Accident Claims Tribunal, Khandwa in Claim Case No. 7/91. 2. Shri Sandeep Kumar Gupta, the owner of tanker preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') before the Motor Accident Claims Tribunal, Khandwa submitting that tanker No. MKF 1329 met with an accident with the truck going ahead. The driver of the truck applied the brake all of a sudden and due to that, the tanker dashed with the truck. A report of the accident was lodged at Police Station Mogaht Road, Khandwa. Compensation of Rs. 44,882/- was claimed on account of the damage to the tanker. 3. The insurer admitted the liability to make payment on the basis of survey on record. However it was case of the negligence of the driver of the tanker. The driver of the tanker had failed to maintain safe distance with the truck. The Claims Tribunal was not having the jurisdiction, as such a claim was required to be decided by the arbitrator to be appointed by the parties in terms of the agreement. Application was not maintainable under the Motor Vehicles Act, 1988. The Claims Tribunal has decided the question as to jurisdiction and maintainability of the claim petition under Motor Vehicles Act, 1988 on 30-9-1994 and rejected the objection raised by the insurer. Ultimately as per final award, a sum of Rs. 44,882/- has been awarded along with interest at the rate of 12% per annum from filing of the claim petition till realization. Aggrieved by the said award, this appeal has been preferred. 4. Shri Sanjay Agrawal, learned counsel appearing on behalf of the insurer has submitted that an application under Section 166 of the Act can be preferred with respect to the Claims mentioned in Section 165(1) of the Act. It is submitted that under Section 165, claim petition can be filed for claiming compensation in cases 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. In the instant case, claim is made by the owner against insurer of oil tanker. In the instant case, claim is made by the owner against insurer of oil tanker. The claim of the property is confined to the property of a third party. Thus, claim petition was not maintainable at the instance of the owner of tanker against insurer of the tanker before the Motor Accident Claims Tribunal. The remedy was to file a civil suit. 5. In order to appreciate the submissions raised by Shri Agrawal, it is necessary to consider Section 165. The Claims Tribunals are constituted 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. Sub-section (1) of Section 165 of the Act is quoted below: Section 165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter 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. 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 persons arising out of the use of motor vehicles" includes claims for compensation under Section 140 and Section 163-A. Reading of Section 165(1) of the Act makes it clear that an application can be filed before the Motor Accidents Claims Tribunal in case of death or bodily injury arising out of the use of motor vehicles or damages to any property. There can be an application for damage to any property of a third party. The claim in respect of damage to third party can be filed along with claim arising out of death or bodily injury to the person arising out of use of motor vehicles. In the instant case, the owner has not filed a claim for damage to the property to third party. Claim has been made by the owner of the tanker against its insurer. In the instant case, the owner has not filed a claim for damage to the property to third party. Claim has been made by the owner of the tanker against its insurer. The owner is claiming damages against the insurer of his tanker. It is not a claim made with respect to the damage to the property of a third party. The owner, driver and insurer of the truck were not arrayed as a party to the petition before the Claims Tribunal. Sub-section (1) of Section 110 of the Motor Vehicles Act, 1939 contained a proviso that where compensation in respect of damage to property exceeds rupees two thousand, the claimant may, at his option, refer to the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim. Sub-section (1) of Section 110 of the Act of 1939. In Sharda Prasad Singh v. Maharashtra State Road Transport Corporation, AIR 1984 Bom 441 , the plaintiff filed a suit also for the recovery of the amount paid by it to the dependants of its deceased employees under the provisions of Workmen's Compensation Act. It also claimed an amount of Rs. 23,000/- towards damages to his own property i.e. staff car. It was held that the suit is not barred by Section 110F of the Motor Vehicles Act, 1939. It was also held that it was open to an insurer to cover the "third party property" to the extent of Rs. 2000/-. 6. In Rajkumar v. Mahendra Singh, 1984 MPU 537 : AIR 1985 M. P. 4, a Division Bench of this Court considering Section 110(1) of the Motor Vehicles Act, 1939 held that a claim for compensation for loss of business on account of the damaged vehicle remaining idle during its repairs cannot be laid before the Claims Tribunal. A party aggrieved on this count will be free to file a civil suit and such suit was not barred under Section 110-F of the Act. It was also observed that Section 110(1) of the Act of 1939 empowers the State Government to constitute Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving inter alia "damages to any property" of a third party. It was also observed that Section 110(1) of the Act of 1939 empowers the State Government to constitute Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving inter alia "damages to any property" of a third party. Considering the matter, the Division Bench of this Court in Rajkumar (supra) has laid down the law as under: 12. Section 110(1), as amended by Act No. 56 of 1969, reads as under: A State Government may, by notification in the official Gazette, constitute one or more Motor Accident Claims Tribunals (hereinafter referred to as Claims Tribunals) 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: Provided that, where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim. (Italics is ours) This section empowers the State Govt, to constitute Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving, amongst others, "damages to any property" of a third party. In the proviso to Sub-section (1) of Section 110 of the Act, the words used are: "a claim for compensation in respect of damage to property". We are of the opinion that the word "damages" or "damage" used in Section 110 of the Act means injury to any property, involved in the accident, due to the use of the motor vehicle. The use of the word "damage" in plural in the body of Section 110(1) and that of singular in the proviso does not make any difference. The Claims Tribunal constituted under Section 110 of the Motor Vehicles Act is empowered only to adjudicate upon claims for compensation in respect of accidents involving damages to any property arising out of use of the motor vehicle. The Claims Tribunal constituted under Section 110 of the Motor Vehicles Act is empowered only to adjudicate upon claims for compensation in respect of accidents involving damages to any property arising out of use of the motor vehicle. Therefore, at best, the claim which can be lodged and adjudicated upon by the Claims Tribunal contemplated by the section is claim for compensation for damages resulted in the vehicle due to the accident. Usually a claim of such a nature is made to recover expenses which may be or might have been incurred for repairs or restoration of the vehicle to its original condition. A claim for loss of business1 on account of vehicle remaining idle during repairs is not a 'damage to the property' of the owner, but may be damage or loss to the owner. We do not think that the Claims Tribunal is empowered under Section 110 of the Motor Vehicles Act to entertain such a claim. Claims for compensation on account of the accident involving death or bodily injury to the person as also the damage to any property could always be laid down before a Civil Court being actions in tort. However, in order to provide speedy and cheap remedy to sufferers, a special provision has been made empowering the State Government to constitute Claims Tribunal for adjudicating claims for compensation on account of death, bodily injury or damage to property arising from accidents. So far as a reference to Section 110-F of the Act barring the jurisdiction of the Civil Court is concerned, we find that it bars the Civil Court to entertain any question relating to "any claim for compensation which may be adjudicated upon by the Claims Tribunal". This section bars the jurisdiction of the Civil Court only in respect of such matters which can be adjudicated upon by the Claims Tribunals. The words "any claim for compensation" in this section mean any one of the classes of the claims specified in Section 110(1) of the Act, namely, (1) death (2) bodily injury and (3) damage to the property. After the amendments made by the Amending Acts No. 59 of 1969 and No. 47 of 1978, as held above by us, there cannot be any doubt that a claim simpliciter for damage to the property can be made before the Claims Tribunal. This also confirms our conclusions. After the amendments made by the Amending Acts No. 59 of 1969 and No. 47 of 1978, as held above by us, there cannot be any doubt that a claim simpliciter for damage to the property can be made before the Claims Tribunal. This also confirms our conclusions. A claim for compensation for 'loss of business' on account of the damaged vehicle remaining idle during its repairs cannot be laid before the Claims Tribunal. A party aggrieved on this count will be free to file a civil suit and Section 110-F of the Act does not bar the jurisdiction of Civil Court. Similar view has been taken in General Manager, K.S.R.T. Corpn. v. K. P. Saradamamma, AIR 1989 Kerala 23. 7. In National Insurance Co. Ltd. v. Santosh Kumar, 2001(5) MPHT 332 , a single Bench of this Court has opined that only a third party can maintain an application in respect of damage to the property before the Accident Claims Tribunal, owner/insured cannot maintain an application with respect to claim of his own damage under Section 166 of Motor Vehicles Act. It has been held thus: 9. 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 Accident 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. 8. A Division Bench of this Court in The New India Assurance Co. Ltd., Gwalior v. P. N. Vijaywargiya and others, AIR 1992 M. P. 122 has laid down thus: 10. The claim for compensation in respect of accidents involving the death or bodily injury may relate to the insured and/or a third person. However, 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 proviso provides for an option lying with the claimant. Where claim for compensation in respect of damage to property exceed rupees two thousand which would necessarily be of a third party (and not the insured), the claimant may have it adjudicated upon by the Tribunal or may have it referred to a Civil Court for adjudication. The proviso provides for an option lying with the claimant. Where claim for compensation in respect of damage to property exceed rupees two thousand which would necessarily be of a third party (and not the insured), the claimant may have it adjudicated upon by the 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 bars the jurisdiction of Civil Court where the claim is entertainable by a Claims Tribunal and a Claims Tribunal has been constituted for that area. 27. We answer the reference in the following terms: With effect from 2nd March, 1970, the date of coming into force of the Motor Vehicles (Amendment) Act, 1969 (Act No. 56 of 1969), a claim for compensation suffered for damage caused to property preferred by a third party in all circumstances can be tried by Motor Accidents Claims Tribunal in respect of accident where claim is preferred or preferable also for bodily injury suffered or death caused. 9. The Apex Court has considered the question recently in Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha and others, AIR 2007 SCW 859 and has held thus: 10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable. 11. In Dhanraj v. New India Assurance Co. Ltd. and Anr. 2004(8) SCC 553 : AIR 2004 SCW5438, it is stated as follows: 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 authorized 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. 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 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. 10. In view of decision of Division Bench of this Court in The New India Assurance Co. Ltd., Gwalior v. P. N. Vijaywargiya and Ors. (supra), particularly para 10 of the decision quoted above, I find that remedy of the owner to file claim before the Civil Court not under Section 166 of Motor Vehicles Act. Owner would be entitled for exclusion of the period spent in these proceedings under Section 14 of Limitation Act. 11. Resultantly, appeal is allowed, impugned order is set aside. No order as to costs. Appeal allowed.