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2009 DIGILAW 75 (CHH)

SHANTI BAI v. UNITED INDIA INSURANCE COMPANY LTD.

2009-03-02

RAJEEV GUPTA, T.P.SHARMA

body2009
ORDER As per Hon'ble Shri Rajeev Gupta, C.J. :- 1. The claimants have preferred this appeal against the impugned award dated 19-11-2004, passed by the 10th Additional Motor Accident Claims Tribunal, Bilaspur (for short 'the Tribunal'), in Claim Case No. 05/2004. 2. The claimants, unfortunate widow and minor children of deceased Dhakela claimed compensation ofRs.24,35,136/- by filing a claim petition under Section 163-A of the Motor Vehicles Act for his death in the motor accident on 28-03-2002. 3. According to the claim petition, deceased Dhakela and his wife Shanti Bai were coming back to their village from Bankimongra on their motorcycle. As the road was too narrow deceased Dhakela with a view to give side to the Truck coming from the other side took down his motorcycle from the road. In the process the motorcycle skidded resulting in multiple serious injuries to Dhakela and his wife Shanti Bai. Dhakela was taken to the hospital Bankimongra from where he was referred to Bhilai Hospital. Dhakela was admitted in Sector-9 Hospital at Bhilai where he succumbed to his injuries on 31-03-2002. The claimants pleaded that deceased Dhakela was getting salary ofRs.8,994/- per month from South Eastern Coalfields Limited. 4. The insurer of the motorcycle contested the claim and denied its liability to pay compensation to the claimants on the plea that deceased Dhakela, the owner of the motorcycle did not pay any extra premium for covering his risk; the deceased cannot be treated as 'Third Party'; and the deceased himself was responsible for the accident. 5. The claimants examined A W -1 Shanti Bai, A W - 2 Daduram Chandra and A W - 3 Ramesh Kumar in support of their claim, wnereas the respondentl Insurance Company examined NA W -1 Abdul Kaleem in rebuttal. 6. The Tribunal on a close scrutiny of the pleadings of the parties and the evidence led by them held that the deceased cannot be treated as 'Third Party'. The Tribunal further held that no extra premium was paid for covering the risk of the deceased who was the owner ofthe motorcycle and was driving the motorcycle at the time of the accident. The Tribunal, therefore, following the dictum of the Apex Court in the case of Dhanraj Vs. New India Assurance Co. Ltd. and another], dismissed the appellants' claim petition. 7. The Tribunal, therefore, following the dictum of the Apex Court in the case of Dhanraj Vs. New India Assurance Co. Ltd. and another], dismissed the appellants' claim petition. 7. Shri Malay Kumar Bhaduri, learned counsel for the Appellants vehemently argued that as the policy issued by the respondent/Insurance Company was a 'Comprehensive Policy', the Insurance Company was liable to pay compensation to the claimants for the death of deceased Dhakela though he was the owner of the motorcycle and was driving the motorcycle himself at the time of the accident. 8. Shri Dashrath Gupta, learned counsel for the respondent/Insurance Company, on the other hand, supported the award and submitted that the scope and extent of 'Comprehensive Policy' has been considered by the Apex Court in the case of Dhanrai (supra) which decision has been followed by the Tribunal in dismissing the appellants' claim petition. 9. Deceased Dhakela was the owner of the motorcycle and was driving the motorcycle at the time of the accident is not in dispute. The insurance policy produced before the Tribunal (Ex.DIl) does not indicate that any extra premium was paid by the owner of the motorcycle for covering his risk. 10. The Apex Court in the case of Dhanrai (supra) while considering the scope and extent of a 'Comprehensive Policy' observed in paras 7 to 9 : "7. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows: "147. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows: "147. Requirement of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- ( a) is issued by a person who is an authorized insurer; or (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be insured by him in respect of the death of or bodily injury to any person, including 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 in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee- . (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of: the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident. if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy ofinsurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely: (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier." 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. 8. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi & Ors.2 it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards 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. 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. 9. 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 ofRs.4,989/- 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." 11. Now reverting to the present case, it is evident from the policy that deceased Dhakela did not pay any extra premium for covering his risk. A 'Comprehensive Policy' in view of the above quoted dictum of the Apex Court in the case of Dhanra/ (Supra), cannot be held to cover the risk of the owner of the vehicle in the absence of payment of any extra premium in that behalf The amount paid by the owner under 'Own Damage' was meant for damage to the motorcycle and not for the injury/death of the owner of the motorcycle. 12. For the foregoing reasons, we do not find any infirmity in the impugned award whereby the appellants' claim petition was dismissed. 13. The appeal, therefore, is liable to be dismissed and is hereby dismissed. 14. No order as to costs. Appeal Dismissed.