Judgment :- P.A From the date of petition till realisation.) 1. This appeal is by the insurance company challenging the award of the Tribunal fastening the liability on them and maintainability of the claim petition. 2. For the sake of convenience the parties in this appeal would be referred to by their ranks as they are arrayed in the claim petition. 3. The claimants/ petitioners are the wife, children and mother of the deceased-J.Mallegowda. According to them, the deceased was aged about 51 years, working as RFO and drawing salary of `8,757/- p.m. He was hale and healthy. He was also the owner of the car bearing Regn. No.KA-09/N.3078. 4. On 27.3.2004, the deceased along with his friends had been to Hassan from Mysore in his car to attend to the marriage of the sister of one K.Suresh. After attending to the marriage, they had their dinner and left Hassan for Mysore in the car belonging to the deceased, driven by himself, via Holenarasipura. When the car driven by the deceased reached Holenarasipur on the intervening night of 27.3.2004 and 28.3.2004 at about 2.15 a.m. the deceased in order to avoid a stray animal which came on the road, swerved the vehicle to the left side, due to which, he lost control of the vehicle as a result, the vehicle turn-turtled and rolled down to a road side ditch resulting in the accident on account of which, the deceased sustained severe injuries and died at the spot. The other inmates also sustained injuries. 5. It is the case of the case of the petitioners that the deceased was their sole bread earner. They were entirely depending on his income for their livelihood. They have no other source of income. On account of the untimely death of the deceased in the accident, they have been subjected to deep mental shock and agony. Their social security and future has been jeopardised. Apart from the same, they also contended that on account of the accident, the car belonging to the deceased sustained damages. Hence, on these grounds, they filed claim petition against the respondents claiming compensation of `25,00,000/-. 6. After notice, the insurer appeared and contested the claim petition. The insurer in their objections among other things admitted the vehicle in question having been insured with them by the deceased and they having issued a valid policy which was in force. Hence, on these grounds, they filed claim petition against the respondents claiming compensation of `25,00,000/-. 6. After notice, the insurer appeared and contested the claim petition. The insurer in their objections among other things admitted the vehicle in question having been insured with them by the deceased and they having issued a valid policy which was in force. But, on the other hand, they contended was in force. But, on the other hand, they contended that they are not liable to pay compensation as the insured himself is the tort-feasor inasmuch as the accident in question has taken place due to his fault and the insured risk is not covered under the policy. Accordingly, they prayed for dismissal of the petition. 7. On the basis of the above pleadings, the Tribunal framed the following issues:- i) Whether the petitioners prove that accident has taken place as alleged? ii) Whether the petitioners prove that due to impact deceased succumbed to injuries as alleged? iii) Whether respondent proves that it is self accident? iv) Whether respondent proves that they are not liable to pay compensation as alleged in the objection? v) Whether the petitioners are entitled to get compensation? If so, to what amount and from whom? vi) To what order or relief the petitioners are entitled? 8. The petitioners in support of their case got examined the second petitioner as PW1 and one more witness as PW2. They got produced 10 exhibits which came to be marked as exhibits P1 to P10 in the case. The respondent-insurer got examined their official one M.S. Venkatesh as RW1 and closed their side. 9. The Tribunal, thereafter, on consideration of the oral and documentary evidence on record held that the accident has taken place, as claimed by the petitioners, resulting in the death of the deceased and further, the respondents have not proved that the accident is a self-accident and they are not liable to pay any compensation. 9. The Tribunal, thereafter, on consideration of the oral and documentary evidence on record held that the accident has taken place, as claimed by the petitioners, resulting in the death of the deceased and further, the respondents have not proved that the accident is a self-accident and they are not liable to pay any compensation. Further, the Tribunal taking into consideration the salary of the deceased at `8,757/- as per Ex.P4 salary certificate and further taking into consideration that after the deceased attaining superannuation, the wife of the deceased would get family pension and considering all other aspects, it took the income of the deceased at `5,000/- p.m. and `60,000/-p.a. Out of the said sum, it deducted one-third towards personal expenses amounting to `20,000/- p.a. After deducting the same, it took a sum of `40,000/- p.a. as the loss of dependency to the petitioners. Further, taking the age of the deceased as 51 years applied the multiplier of 12 and awarded `4,80,000/- towards loss of dependency. Further, the Tribunal awarded a sum of `10,000/- towards loss of consortium, funeral and other incidental expenses. Apart from the same, the Tribunal considering the claim in respect of the damages to the tune of `37,500/- awarded only a sum of `30,000/-towards damages sustained to the car. Thus, in all, it awarded a sum of `5,20,000/- with interest at the rate of 6% p.a. from the date of the petition till realisation. The Tribunal further fastened the liability on the respondent/insurer to pay compensation awarded to the petitioners. 10. The appellant/insurer being aggrieved of fastening the liability on them and maintainability of the petition have presented this appeal. 11. The learned counsel appearing for the appellant-insurer, Sri.A.M.venkatesh, submitted that the liability fastened on the insurer by the Tribunal cannot be sustained since the tort feasor is the deceased himself. In support of his submission he relied upon the decision reported in 2005 ACJ 1 in the case of DHANRAJ – VS – NEW INDIA ASSURANCE CO. LTD. AND ANOTHER particularly referring to para 9 of the said judgment submitted that no liability can be fastened on the insurer. He further submitted that since the petitioners have not impleaded the owner of the offending vehicle in the petition and as the petition is filed only against insurer, the petition itself is not maintainable. LTD. AND ANOTHER particularly referring to para 9 of the said judgment submitted that no liability can be fastened on the insurer. He further submitted that since the petitioners have not impleaded the owner of the offending vehicle in the petition and as the petition is filed only against insurer, the petition itself is not maintainable. According to him, unless the owner/insured is made liable, the insurer cannot indemnify the insured. Therefore, he submitted that the petition filed by the claimants in the absence of impleading the owner is not maintainable. In support of this submission he relied upon the decision reported in 1998 ACJ 121 in the case of ORIENTAL INSURANCE CO.LTD – VS – SUNITHA RATHI AND OTHERS. He further submitted that the deceased had paid the additional premium towards personal accident claim and the insurer accordingly, have satisfied the said claim to the tune of `2,00,000/- as per the terms and conditions of the insurance policy-Ex.P6. Hence, he submitted that the impugned judgment and award passed by the Tribunal fastening the liability on them cannot be sustained and the petitioner filed by the claimants is liable to be dismissed. 12. Per contra, the learned counsel for the petitioners supported the impugned judgment and award of the Tribunal. 13. Having regard to the rival submissions made by the learned counsel for the parties and on perusal of the oral and documentary evidence on record, the points that arise for our consideration are:- i) Whether the liability fastened on the insurer having regard to the fact that the deceased himself being the tort feasor, is sustainable? ii) Whether the petition filed by the petitioners is maintainable in the absence of impleading the owner of the offending vehicle? 14. Re Point No. 1: The facts are not in dispute. The petitioners are the wife, children and mother of the deceased. The deceased was aged about 51 years workings as RFO special squad, Mysore, drawing salary `8757/- p.m. He was also the owner of the car bearing No.KA-09/N.3078 involved in the accident. 15. The evidence and the documents on record reveal that the deceased was the owner of the car involved in the accident and the said car had been insured with the respondent-insurance company as on the date of accident. The insurer had issued the valid policy which was in force, which is at Ex.P6. 15. The evidence and the documents on record reveal that the deceased was the owner of the car involved in the accident and the said car had been insured with the respondent-insurance company as on the date of accident. The insurer had issued the valid policy which was in force, which is at Ex.P6. Further, the materials on record discloses that at the time of accident, the deceased himself was driving the car in question. The accident in question has taken place on account of his rash and negligent driving of the car. This is amply established from the documents produced by the claimants which are on record. A perusal of the policy discloses that the risk of the deceased-owner is not covered as he himself is responsible for the accident. The policy clearly discloses that the liability of the insurer is only to the extent of the terms and conditions of the policy. This is fortified from the evidence of RW1, the officer of the appellant-insurance company. His evidence further discloses that the deceased had paid extra premium of `100/- towards the personal accident claims and to that extent, the insurer have satisfied the claim to the extent of `2,00,000/-. The Hon’ble Supreme Court in Dhanaraj’s case, relied upon by the learned counsel for the appellant-insurer, cited supra, in paras 9 & 10 has held as follows:- “In the case of Oriental Insurance Co.Ltd. v. Sunita Rathi, 1998 ACJ 121 (SC) it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against the 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. 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.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. 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. 16. It is clear from the principles laid down in the aforesaid mentioned decision that the risk in respect of the death or fatal injury to the owner of the vehicle is not covered under the policy and as such the insurer is not liable to pay any compensation. In other words, no liability can be fastened on the insurer as the deceased himself is the tortfeasor. 17. The facts on hand in this case reveal that the deceased is the owner of the car. He himself was driving the car at the time of accident. Therefore, the risk of the owner in such a situation is not covered under the policy except to the extent of personal accident claim for which he has paid premium which has been satisfied by the insurer in the present case. Therefore, in view of the principles laid down by the Apex Court in the aforementioned decision, the impugned judgment and award of the Tribunal fastening liability on the insurer cannot be sustained. Accordingly, we set aside the same. 18. Re Point No.2: The next aspect that dwells upon for consideration is in respect of the maintainability of the petition filed by the claimants in the absence of impleading the owner of the offending vehicle as the party to the proceedings. It is the contention of the insurer that since the claimants have not impleaded the owner of the offending vehicle as a party to the proceedings, the petition filed only against the insurer is liable to be dismissed on the ground of not impleading necessary parties. In this connection, it was submitted that unless the claimants implead the owner as party to the proceedings and the owner is held liable for compensation, the role of the insurer to indemnify the insured does not arise. In other words, the insurer steps in to indemnify the insured only when the insured is held liable for payment of compensation. In this connection, it was submitted that unless the claimants implead the owner as party to the proceedings and the owner is held liable for compensation, the role of the insurer to indemnify the insured does not arise. In other words, the insurer steps in to indemnify the insured only when the insured is held liable for payment of compensation. The Hon’ble Supreme Court in the case of ORIENTAL.CO.LTD – VS – SUNITHA RATHI AND OTHERS reported in 1998 ACJ 121 has held as follows:- Motor Insurance – Liability of insurance company-High Court has exempted the owner of the vehicle from any liability but made the insurer along liable – Whether the insurance company can be made liable without mulcting the liability on the insured-Held: no; liability of insurer arises for the purpose of indemnifying the insured under the contract of insurance when the liability of the insured has been upheld. It is clear from the principles laid down in the aforesaid decision that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. In this case, the records reveal that the claimants have not impleaded the owner of the offending vehicle i.e. the deceased. They have impleaded only the insurer as the respondent in the proceedings. As rightly submitted by the counsel for the appellant-insurer unless the claimants implead the owner as the party to the proceedings and the owner is held liable for compensation, insurer cannot be made liable to indemnify the insured. The said contention of the appellant-insurer is fortified from the principles laid down in the decision adverted to above. In this case, since the claimants have not impleaded the owner of the offending vehicle and as the petition is filed only against the insurer, we find sufficient force in the submission made by the appellant-insurer that the petition filed by the petitioners itself is not maintainable at the threshold and it should be dismissed. Accordingly, we hold that the petition filed is not maintainable and is liable to be dismissed on the ground of not impleading necessary parties i.e. the owner of the offending vehicle. 19. Accordingly, we hold that the petition filed is not maintainable and is liable to be dismissed on the ground of not impleading necessary parties i.e. the owner of the offending vehicle. 19. In view of our holding that the petition filed by the claimants is not maintainable, we do not find any reason to dwell on the question of assessing compensation to be awarded. 20. In the result, for the foregoing reasons, in our view, the impugned judgment and award passed by the Tribunal is liable to be set aside. 21. Accordingly, we proceed to pass the following order:- The appeal filed by the insurer is allowed. The judgment and award passed by the Tribunal fastening the liability on the insurer is set aside. The claim petition filed by the claimants is dismissed. The amount in deposit made by the insurer is ordered to be refunded to them. Office is directed to draw the award accordingly.