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2007 DIGILAW 453 (GAU)

New India Assurance Co. Ltd. v. Bhupen Saikia

2007-06-28

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This is an appeal preferred by the insurer against the award dated 20.6.2003, passed in M.A.C. Appeal No. 202 of 2002, by the learned Member, Motor Accidents Claims Tribunal, Sonitpur, Tezpur, whereby the learned Tribunal has directed the insurer appellant to pay Rs. 1,50,000 as compensation with interest at the rate of 9 per cent per annum from the date of making of the claim application until the realization of the entire awarded amount. 2. Heard Mr. A.K. Goswami, learned senior counsel, assisted by Mr. A. Ahmed, learned Counsel for the appellant. None has appeared on behalf of the respondents. 3. The material facts giving rise to the present appeal may, in brief, be set out as under: (i) The claimant instituted a proceeding under Section 166 of the Motor Vehicles Act, 1988 ('the M.V. Act'), seeking a sum of Rs. 2,50,000 as compensation for the injuries sustained by him in a motor vehicle accident, the claimant's case being, in brief, thus: On 23.11.2001 at about 5 p.m., the claimant was proceeding from Tezpur towards his village Bamparbatia, sitting as a pillion rider on a scooter bearing registration No. AS 12-5666 and as the driver, namely, Gopen Kalita drove the scooter in a rash and negligent manner, he failed to control the scooter, the scooter fell down on the road at village Bamparbatia, causing grievous injuries to the claimant. (ii) The insurer resisted the claim by contending, inter alia, that since the claimant was the owner of the scooter, the insurance policy in question, did not cover the risk of the owner of the vehicle as the insured. No specific issue was, however, framed on the plea so taken by the insurer and, upon recording the evidence adduced by the claimant, learned Tribunal directed the insurer to make payment of compensation awarded to the claimant. As to why the insurer was made liable to pay compensation, the learned Tribunal assigned no specific reason. 4. In the backdrop of the facts indicated above, it is now required to be determined if the insurer appellant is at all liable to pay compensation to the claimant-respondent. In this regard it needs to be carefully borne in mind that the claimant himself was, admittedly, registered owner of the offending scooter. An insurance policy, ordinarily, makes the insurer indemnify the insured. In this regard it needs to be carefully borne in mind that the claimant himself was, admittedly, registered owner of the offending scooter. An insurance policy, ordinarily, makes the insurer indemnify the insured. In the present case, if the injured, i.e., the owner of the vehicle becomes liable to pay compensation to any third party, it would become then the obligation of the insurer to indemnify the owner and pay to the third party such compensation as may have been awarded in favour of the third party. When the insured or owner of the vehicle is not liable to pay anyone any sum as compensation, the question of the insurer indemnifying the owner as insured does not arise at all. 5. In the present case, even if the accident took place due to rash and negligent driving of the scooter by its driver, Gopen Kalita, as alleged by the claimant, the fact remains that the claimant, as owner of the scooter, did not become liable to pay compensation to anyone. The question of the claimant becoming liable to pay compensation to himself did not arise at all. In such circumstances, the question of the insured being indemnified by insurer did not arise at all. Viewed thus, it becomes abundantly clear that the learned Tribunal has illegally fastened the insurer with the liability to pay compensation to the claimant-respondent. 6. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi AIR1997SC4228 , it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liability 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. 7. Following the decision in the case of Sunita Rathi (supra), the Supreme Court reiterated the position of law, in Dhanraj v. New India Assurance Co. Ltd. (2004)8SCC553 , which reads: (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. 8. What emerges from the above discussion is that where the insured, i.e., the owner of a vehicle does not become liable to pay compensation to a third party, the insurer has no liability to pay compensation for the death of, or injuries caused to the owner of the vehicle. 9. Because of what has been discussed and pointed out above, it becomes abundantly clear that in the case at hand, the impugned award is wholly against the law and cannot be sustained. 10. In the result and for the reasons discussed above, this appeal succeeds. The impugned award shall accordingly stand set aside. 11. With the above observations and directions, the appeal shall stand disposed of. 12. Send back the L.C.R.