Judgment : Per S. MANIKUMAR, J. Aggrieved by the award, fastening liability on the appellant-Insurance Company to pay compensation to the victim, who is said to be the tort-feasor and caused the accident, the Insurance Company has filed this appeal. 2. It is the case of the claimant that on 211. 1998, at 5.45 a.m., when he was driving a Jeep bearing Registration No. TN 09 C 6773 from Rameswaram to Chennai i.e., from South to North at GST Road, along with his friends, near Ayyankoil Pattu, Villupuram, suddenly two buffalos crossed the road and in order to avoid the collusion, he came to the right side of the road and in that process, though he had exercised caution, lost control and dashed against a bridge, due to which, he sustained injuries all over his body and admitted to Villupuram Government Hospital. It is the further case of the respondent/claimant that the accident was not due to his negligence and therefore, prayed for appropriate compensation under various heads. 3. Theappellant/Insurance Company, with the leave of the Court, disputed the manner of the accident. They further submitted that the accident occurred only due to the negligence of the respondent/claimant. They also submitted that the claimant was not an employee under the owner of the vehicle and therefore, he cannot himself to be a driver and in the abovesaid circumstances, not entitled to maintain a claim petition. Without prejudice to the above, the nature of injuries sustained by him and the compensation claimed under various heads, were also disputed. 4. In the additional counter affidavit, the appellant-Insurance Company further submitted that in the said accident, three other persons were also injured and one died. Legal representatives of the deceased and the injured persons filed separate claim petitions in M.C.O.P. Nos. 5637, 5603, 5638 and 5639 of 1999, respectively and the learned VIth Judge, Motor Accident Claims Tribunal, Chennai, by a common judgment, dated 28. 2006 has categorically held that the accident had occurred only due to the rash and negligence of the respondent/claimant. They further contended that the respondent, being responsible for the accident, cannot maintain a claim petition. 5. Before the Tribunal, the respondent/claimant examined himself as P.W.1 and P.w.2 is said to be an eye-witness to the accident. PWs.3 and 4 are the Doctors, who examined the respondent/claimant with reference to the medical records. They further contended that the respondent, being responsible for the accident, cannot maintain a claim petition. 5. Before the Tribunal, the respondent/claimant examined himself as P.W.1 and P.w.2 is said to be an eye-witness to the accident. PWs.3 and 4 are the Doctors, who examined the respondent/claimant with reference to the medical records. Exhibit P-1 – Discharge Summary, Exhibit P-2-Medical bills, Exhibit P-3 – Income Certificate, Exhibit P-4 – FIR, Exhibit P-5 – Disability Certificate, Exhibit P-6 – X-Ray, Exhibit P-7 – Disability Certificate and Exhibit P-8 – Driving Licence of the respondent/claimant were marked. The Assistant Manager of the Insurance Company was examined as R.W.1 and Exhibit R-1-Authorisation Letter and Exhibit R-2-Judgment Copy in the above referred claim petitions were marked on the side of the appellant-Insurance Company. 6. TheTribunal, on evaluation of pleadings and evidence, held that the Insurance Company is liable to pay compensation and awarded a sum of Rs. 3,27,062/- with interest at the rate of 7.5% per annum from the date of numbering, i.e., 110. 2000, till the date of realization. 7. Assailing the correctness of the award, Ms. V. Sowmya, learned counsel for the appellant-Insurance Company submitted that the Tribunal has erred in arriving at the conclusion that the driver of the Jeep bearing Registration No. TN 09 C 6773, is entitled to compensation for the injuries sustained by him in the accident, despite the fact the he was responsible for the same. She further submitted that the Tribunal ought to have appreciated the evidence of R.W.1, Assistant Manager of the appellant-Insurance Company, who had investigated into the occurrence and placed Exhibit R-2, copy of the judgment rendered in other claim petitions, where it has been categorically held that the claimant was negligent in causing the accident. 8. Learned counsel for the appellant-insurance Company submitted that when P.W.4, eye-witness and one of the occupants in the vehicle, has lodged the FIR against the respondent/claimant, alleging rash and negligent driving, the tort-feasor cannot maintain a claim petition under Section 166 of the Motor Vehicles Act, to make any profit of his own act of negligence. In this regard, she has placed reliance on the decision of the Supreme Court in Oriental Insurance Co. Ltd v. Meena Variyal (2007) 2 MLJ 1230 : (2007) ACJ 1284. Without prejudice to the above, she has also disputed the quantum of compensation. 9. Per contra, Mr. In this regard, she has placed reliance on the decision of the Supreme Court in Oriental Insurance Co. Ltd v. Meena Variyal (2007) 2 MLJ 1230 : (2007) ACJ 1284. Without prejudice to the above, she has also disputed the quantum of compensation. 9. Per contra, Mr. M.T. Arunan, learned counsel for the respondent/claimant submitted that in all other Claim Petitions, appropriate compensation has already been awarded by the Tribunal and that no appeal has been preferred. He further submitted that the accident occurred not due to the negligence of the driver, but when the respondent/claimant wanted to avoid the buffaloes, which crossed the road, he turned the vehicle to the right side of the road and inspite of his diligent efforts, lost control and dashed against a bride. Placing reliance on the evidence of P.W.4, an eye-witness to the accident, he submitted that the respondent is entitled to maintain a claim under Section 166 of the Motor Vehicles Act. 10. On the quantum of compensation, learned counsel for the respondent/claimant submitted that sufficient oral and documentary evidence has been let in to prove that the respondent/claimant sustained a fracture in his right leg and hip and that he was treated as inpatient in Sundaram Medical Centre, Chennai, during which period, an operation was also performed. He submitted that the nature of injuries and treatment is evident from Exhibit P-1, Discharge Summary and plates were also fitted to fuse the bones. It is his further contention that the respondent/claimant, prior to the accident, he was a partner in GTR Industry, Ambattur and now he could not perform his work and lost considerable income, during the period of treatment. 11. Learned counsel for the respondent/claimant submitted that a sum of Rs. 55,162/- has been incurred for medical expenses and due to 60% disability suffered by him, at the age of 38 years, he has lost his earning capacity. He submitted that the finding of the Tribunal, fastening liability on the insurance Company cannot be said to be illegal. In this context, he also placed reliance on the decisions in Kaushnuma Begum v. New India Assurance Co. He submitted that the finding of the Tribunal, fastening liability on the insurance Company cannot be said to be illegal. In this context, he also placed reliance on the decisions in Kaushnuma Begum v. New India Assurance Co. Ltd., AIR 2001 SC 485 : (2001) 2 SCC 9 : (2001) 2 MLJ 112, and Bangalore Metropolitan Transport Corporation v. Sarojamma (2008) 5 SCC 142 and submitted that there is no manifest illegality in the impugned award, both on the finding regarding liability and in determining the quantum of compensation, for the serious injuries sustained by the respondent/claimant and hence, prayed for dismissal of the appeal. 12. Heard the learned counsel for the parties and perused the materials available on record. 13. Before adverting to the facts of this case, it is necessary to consider the difference between the claim petitions made under Sections 163-A and 166 of the Motor Vehicles Act. 14. In Minu B. Mehta and Another v. Balkrishna Ramchandra Nayan AIR 1977 SC 1248 : (1977) 2 SCC 441 : (1977) 2 SCR 886 , the Supreme Court held that after the introduction of Section 163-A of the Motor Vehicles Act, the victim of an accident or his dependants in the case of death, have an option either to file a claim petition, under Sections 166 or 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing negligence of the driver or owner of the vehicle concerned. But, if they proceed under Section 163-A of the Act, compensation would be awarded in terms of the Second Schedule, without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. 15. In Oriental Insurance Co. Ltd. v. Meena Variyal (supra), one Suresh Chandra Variyal was employed as a Regional manager in Apace Savings and Mutual Benefits (India) Ltd., owner of a motor vehicle. Variyal was provided with a car by the employer. The vehicle was insured with the appellant-Insurance company in terms of Motor Vehicles Act, 1988. There was no special contract. The vehicle met with an accident on 16. 1999, in which, Suresh Chandra Variyal, died. The widow and children filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. The vehicle was insured with the appellant-Insurance company in terms of Motor Vehicles Act, 1988. There was no special contract. The vehicle met with an accident on 16. 1999, in which, Suresh Chandra Variyal, died. The widow and children filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. According to the claimants, the deceased was driving along with his ‘companion’ Mahmood Hasan, after completing his work for the employer, about 11.30 p.m., the car collided with a tree due to the rash and negligent driving of the driver. It was claimed that the car was being driven by Mahmood Hasan, at the time of the accident. The deceased was an occupant of the car. Mahmood Hasan had lodged a first information report on the same day giving wrong facts to escape from prosecution. On these facts, the claimants/dependants claimed compensation. Mahmood Hasan was not impleaded as a party. The owner of the car did not appear and file any written statement. The appellant-Insurance Company in their written statement pleaded that the driver and owner of the vehicle, colluded together and that the deceased himself had driven the car, at the time of accident and therefore, the Insurance Company was not liable to pay compensation. In support of the claim, wife of Variyal was examined as P.W.1 and another person, who was allegedly travelling in the car, when it met with the accident, was examined as P.W.2. Wife asserted that the vehicle was driven by Mahmood Hasan, at the time of accident and her husband was traveling in the car. This was also supported by P.W.2, who claimed that he was also traveling in the same car, at the time of accident. P.W.2 also gave evidence that sometimes Variyal himself used to drive the vehicle, but Mahmood Hasan usually drove the car. Mahmood Hasan had lodged a First Information Report, stating that Variyal was driving the car at the time of the accident. The Motor Accident Claims Tribunal held that the evidence disclosed that Variyal was driving the vehicles since what was more acceptable was the first version regarding the accident and not the oral assertion of P.Ws.1 and 2 in support of the claim. The Motor Accident Claims Tribunal held that the evidence disclosed that Variyal was driving the vehicles since what was more acceptable was the first version regarding the accident and not the oral assertion of P.Ws.1 and 2 in support of the claim. The Tribunal further held that Variyal did not have a valid driving licence to drive the car and that the claimants were entitled to receive the amount from the owner of the vehicle, i.e., the employer, but not from the insurance company, since the vehicle was driven by the deceased himself, who was an employee of the owner of the car and the policy of insurance did not cover such an employee. The claimants filed an appeal before the High Court. The insurance company, which was exonerated by the Tribunal, resisted the appeal. The owner of the vehicle remained ex parte. The claimants contended inter alia that the Tribunal had erred in finding that the insurance company was not liable to pay compensation. The insurance company defended the appeal, contending inter alia that the deceased was not a third party covered by the insurance policy and was an employee of the owner of the vehicle and not covered by the policy. Even otherwise, they submitted that he was driving the car by himself, as found by the Tribunal and as the accident was caused by his own negligence, the insurance company was not liable. They also submitted that since the deceased was driving the car at the time of accident, as found by the Tribunal and therefore, the tort feasor is not entitled to any compensation from the Insurance Company. The High Court did not interfere with the finding, however, following the ratio decidenti in National Insurance C o. Ltd. v. Swaran Singh and Others AIR 2004 SC 1531 : (2004) 3 SCC 297 , the Court directed that the appellant-Insurance Company to pay compensation and recover from the insured. 16. Testing the correctness of the impugned judgment, fastening liability on them, the Insurance Company went on appeal to the Supreme Court, wherein, it was contended that in the absence of any reversal of the finding regarding the tort committed by the deceased, there was not question of the Insurance Company being made liable. 16. Testing the correctness of the impugned judgment, fastening liability on them, the Insurance Company went on appeal to the Supreme Court, wherein, it was contended that in the absence of any reversal of the finding regarding the tort committed by the deceased, there was not question of the Insurance Company being made liable. It was also contended that in the absence of impleading Mahmood Hasan, the driver, who was allegedly driving the vehicle, the claim ought not to have been entertained, especially, when there was a controversy as to whether the car was driven by Mahmood Hasan or by the deceased. On behalf of the claimants, it was submitted that when the vehicle was driven by Mahmood Hasan, the Tribunal went wrong in recording a rinding that the deceased drove the vehicle at the time of accident. On the basis of National Insurance Co. Ltd. v. Swaran Singh and Others (supra), they prayed that the directions granted by the High Court be sustained. 17. While considering the above aspect, the Supreme Court, at Paragraph 9, held as follows: “It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Ac t, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made.” 18. Analysing the statutory provision Sections 145 to 149 of the Motor Vehicles Act and the definition of the word, “third party”, the Supreme Court, at paragraph 26, held that, “26. On the facts of this case, there is no finding that Mahmood Hasan, another employee of the owner was driving the vehicle. Even if he was, there is no finding of his negligence. The victim was the Regional Manger of the Company that owned the car. He was using the car given to him by the Company for use. Whether he is treated as the owner of the vehicle or as an employee, he is not covered by the insurance policy taken in terms of the Act – without any special contract – since there is no award under the Workmen’s Compensation Act that is required to be satisfied by the insurer. In these circumstances, we hold that the appellant/Insurance Company is not liable to indemnify the insured and is also not obliged to satisfy the award of the Tribunal/Court and then have recourse to the insured, the owner of the vehicle. The High Court was in error in modifying the award of the Tribunal in that regard.” 19. In Oriental Insurance Company Ltd. v. Kaliya Pillai, Thangam and N. Velu (2002) 3 MLJ 777 : 2003-I-LLJ-536 : I (2003) ACC 447, the driver was found negligent and legal representatives/claimants made a claim under the Motor Vehicles Act. The Division Bench held that when the deceased himself was the tort-feasor, the claimants cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. 20. In Dhanraj v. New India Assurance Co. The Division Bench held that when the deceased himself was the tort-feasor, the claimants cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. 20. In Dhanraj v. New India Assurance Co. Ltd. and Another, AIR 2004 SC 4767 : (2004) 8 SCC 553 , the Supreme Court considered a case, where the appellant along with certain other persons, was travelling in his own Jeep, met with an accident. The appellant as well as the other passengers received injuries. They filed individual Claim Petitions and the appellant also filed a Claim Petition. The Motor Accident Claims Tribunal (MACT) held that the Driver of the Jeep was responsible for the accident. In all the Claim Petitions, filed by other passengers, the Tribunal directed that the appellant (as the owner) as well as the Driver and Insurance Company were liable to pay compensation. In the Claim Petition filed by the appellant, the Motor Accident Claims Tribunal directed the driver and the Insurance Company to pay compensation to the appellant. The Insurance Company filed an Appeal to the High Court, which was allowed, holding that as the appellant, being the owner of the vehicle, the Insurance Company is not liable to pay compensation. The matter went upto Supreme Court. Since the owner himself sustained injuries and claimed compensation, the Supreme Court, having seen the comprehensive policy, posed the que3stion as to whether, a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. After considering Section 147 of the Motor Vehicles Act, 1988, which deals with the requirements of policies and limits of liability, at Paragraph 8, the Supreme Court, held 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 office vehicle.” 21. In the above reported case, the Supreme affirmed its earlier judgment in Oriental Insurance Co. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner office vehicle.” 21. In the above reported case, the Supreme affirmed its earlier judgment in Oriental Insurance Co. Ltd. v. Sunita Rathi and Others (1998) 1 MLJ80, wherein, it has been held that the liability of the Insurance Company is only for the purpose of indemnifying the insured against the liabilities incurred towards third party 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. .22. In Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha and Others AIR 2007 SC 1054 : (2007) 2 MLJ 660, the Supreme Court considered a case, where the deceased was the owner of the vehicle, insured with the Insurance Company. While he was driving the vehicle, allegedly, in order to save a goat which was running across the road, he swerved (sic) the vehicle and in the result, it dashed against a tree on the road side. On account of the injuries, he succumbed to death. The Insurance Company defended the claim, contending inter alia that as per the Motor Vehicle Act and Rules, the owner is not entitled to get any compensation, if the accident had occurred due to his negligence. They further contended that as the Insurance Policy is a third party Policy in nature, the contact between the insured and insurer would cover, if any accident has occurred arising out of the use of Motor Vehicle, then, only the third party is entitled to get compensation. They also submitted that the insurer and insured are the first and second parties respectively and all others are third parties respectively and all others are third parties. They further submitted that though the deceased had a valid driving licence, still he cannot be treated as a third party, as per the statutory provisions and therefore, submitted that they were not liable to pay compensation. Dealing with the question as to whether the Insurance Company is liable to pay compensation, the Supreme Court, on the facts of the above case, held as follows: .“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. Dealing with the question as to whether the Insurance Company is liable to pay compensation, the Supreme Court, on the facts of the above case, held as follows: .“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 that the one which le was driving, the question which 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. Liability of the insurer-Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicle Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.” .23. The ratio deceidendi of the decision in Oriental Insurance Co. Ltd., v. Rajni Devi (2008) 5 SCC .736 : (2008) 5 MLJ 626, is that Section 163-A does not have any application in regard to an accident, wherein the owner of the vehicle himself was involved in the accident. It was further held that liability under Section 163-A is on the owner of the vehicle and therefore, a person cannot be both, a claimant as also a recipient. 24. From the above judgments, it is well settled that in a case, where a third party is involved, the liability of the Insurance Company is automatically attracted. However, when compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of Insurance Company, being governed by the principle contract qua contract, the claim of the Insurance Company would depend upon the terms thereof. .25. In New India Assurance Company Ltd. v. Sadanand Mukhi and Others AIR 2009 SC 1788 , the son of the owner was driving the vehicle and he died in the accident. He was not regarded as third party. .The Supreme Court, after considering the ratio decidenti in Oriental Insurance Co. Ltd., v. Meena Variyal (supra) and statutory provisions under Sections 163-A and 166, held that on the facts of the case, neither Section 163-A nor 166 of the Motor Vehicles Act, would be applicable. 26. He was not regarded as third party. .The Supreme Court, after considering the ratio decidenti in Oriental Insurance Co. Ltd., v. Meena Variyal (supra) and statutory provisions under Sections 163-A and 166, held that on the facts of the case, neither Section 163-A nor 166 of the Motor Vehicles Act, would be applicable. 26. Inthe case on hand, the injured is not the owner of the vehicle. Pleadings and evidence, disclose that he was driving the Jeep along the friends. It is the case of the respondent/claimant that in order to avoid the vehicle hitting against two buffaloes, he has swerved (sic) the Jeep to the right side, unable to control, dashed against the vehicle. It is not the case of the respondent/claimant that he was a paid employee, i.e. a paid driver of the second respondent, in this appeal. Admittedly, FIR was registered against him and the other passengers, who sustained injuries, claimed compensation against the owner, viz., second respondent herein and the insurer, appellant herein. Exhibit R2 is the common judgment rendered in the above claim petitions and the findings of negligence, fixed on the respondent/claimant, has not been challenged. The respondent/claimant, though not the owner of the jeep, probably would have borrowed the vehicle from the second respondent and caused the accident. In t he light of the judicial pronouncements, as rightly contended by the learned counsel for the appellant-Insurance Company, as a tort-feasor, he cannot claim compensation against the insurer. Therefore the finding of the Tribunal, fastening the liability on the Insurance Company, cannot be approved. 27. In Kaushnuma Begum v. New India Assurance Co. Ltd. (supra), the vehicle was involved in the accident, due to the bursting of front tyre of the jeep. Rashness and negligence of the driver was not established. Therefore, the Supreme Court set aside the orders of the Tribunal and the Division Bench of the Allahabad High Court. 28. In Bangalore Metropolitan Transport Corporation v. Sarojamma (supra), the deceased met with an accident, while traveling in the bus. The claim was made under Section 163-A by the mother, the sole heir. Regarding the burden of proof under Section 163-A of the Act, the Supreme Court at Paragraphs 6, to 9, held as follows: “6. Section 163-A of the Act was inserted by Act No. 54 of 1994 with effect from 111. 1994. The claim was made under Section 163-A by the mother, the sole heir. Regarding the burden of proof under Section 163-A of the Act, the Supreme Court at Paragraphs 6, to 9, held as follows: “6. Section 163-A of the Act was inserted by Act No. 54 of 1994 with effect from 111. 1994. For invoking the said provision, it is not necessary for a claimant to establish any act of negligence on the part of the driver. It is not necessary even to plead that the death had occurred owing to any wrongful act or neglect or default of owner of the vehicle. 7. Quantum of compensation is to be determined in terms of the Schedule II appended thereto. In terms thereof, apart from the amount of compensation as provided for therein only funeral expenses, loss of consortium (if beneficiary is the spouse), loss of estate, medical expenses, would be payable. 8. As the Schedule II provides for a structured formula, ordinarily, the same has to be adhered to. The structured formula itself stipulates reduction of income of the deceased by one-third in consideration of the expenses which he would have incurred towards maintaining himself, had he been alive. 9. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof.” 29. In the above reported cases, the victim was a third party and not a tort-feasor. Therefore, both the judgments relied on by the learned counsel for the respondent/claimant are not applicable to the facts of this case. For the reasons stated supra, the first respondent, who is the tort-feasor, cannot claim compensation, for his own conduct against the insurer, appellant herein. 30. In the result, the impugned judgment fastening the liability on the Insurance Company is set aside and the civil miscellaneous appeal is allowed. Consequently, Connected miscellaneous petition is closed. No costs.