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2011 DIGILAW 162 (ORI)

KIRANABALA JENA v. NATIONAL INSURANCE CO. LTD.

2011-03-11

S.C.PARIJA

body2011
JUDGMENT : S.C. Parija, J. This appeal by the legal heirs of the deceased owner of the vehicle (insured) is directed against the award dated 10.4.2009 passed by the 1st Motor Accident Claims Tribunal, Cuttack, in Misc.Case No.1140 of 2002, holding that the insurance policy issued in respect of the offending vehicle (truck) No.OR-04/5924, does not cover the risk of the owner (insured) and therefore the insurer is not liable to pay the compensation amount. 2. The case of the claimants in their claim application filed before the learned Tribunal u/s 163-A of the Motor Vehicles Act, 1988 (for short "M.V.Act") was that the deceased Gangadhar Jena, who is the owner of the truck No.OR-04/5924, was returning to Bhubaneswar, driving his own truck, on 2.11.2001, at about 9.30 A.M., when the said truck capsized near Badapokharia on N.H. No.5, as a result of which, Gangadhar died in the said accident. It was claimed that the deceased Gangadhar was doing transport business and was earning Rs.6,000/- per month. The plea of the claimants was that as the death of Gangadhar occurred due to the accident arising out of the use of his won vehicle, they are entitled to compensation from the insurer, as the vehicle was covered under a valid policy of insurance. 3. P.W.2, examined on behalf of the claimants stated in his evidence that while he was proceeding towards Cuttack, he found that the truck bearing No.OR-04/5924 was being driven by Gangadhar Jena, which capsized near Badapokharia on N.H. No.5, as a result of which, Gangadhar died in the said accident. The Final Form (Ext.2) filed by the claimants, revealed that the police after investigation, found that the deceased Gangadhar Jena, who was driving the vehicle at the time of the accident, was rash and negligent in causing the accident, which resulted in his death. Accordingly final report was submitted under Sections 279/337/304-A IPC, as the accused driver had died in the accident. On the basis of the evidence on record, both oral and documentary, including the police papers, learned Tribunal came to hold that deceased Gangadhar Jena died in the accident on 2.11.2001, arising out of use of the offending vehicle (truck) No.OR-04/5924. 4. Accordingly final report was submitted under Sections 279/337/304-A IPC, as the accused driver had died in the accident. On the basis of the evidence on record, both oral and documentary, including the police papers, learned Tribunal came to hold that deceased Gangadhar Jena died in the accident on 2.11.2001, arising out of use of the offending vehicle (truck) No.OR-04/5924. 4. As regard the liability to pay the compensation amount, learned Tribunal has come to find from the insurance policy (Ext.8) that the same did not cover the risk of deceased Gangadhar Jena (insured), who was the owner of the offending vehicle and no additional premium has been paid to cover the risk of the owner of the vehicle. Accordingly, learned Tribunal came to hold that the insurance company can not be made liable to pay the compensation amount. 5. The sole question which falls for consideration in the present appeal is whether the comprehensive insurance policy issued in respect of the offending truck No.OR-04/5924 also covers the risk of its owner (insured). 6. Provisions relating to grant of compensation, as detailed in Chapters XI and XII of the M.V. Act have been enacted by the Parliament in order to achieve the purpose and object stated therein. Section 146 of the lays down the requirements for insurance against third-party risk. 6. Provisions relating to grant of compensation, as detailed in Chapters XI and XII of the M.V. Act have been enacted by the Parliament in order to achieve the purpose and object stated therein. Section 146 of the lays down the requirements for insurance against third-party risk. The requirements of insurance policy and limits of liability has been provided u/s 147(1) of the M.V. Act, which reads as under: 147, Requirements 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: and (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 incurred 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. 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 a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. 7. The provisions of the M.V. Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident, in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property. 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. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. (See- Dhanraj Vs. New India Assurance Co. Ltd. and Another, (2004) 8 SCC 553 ). 9. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, (1998) 1 SCC 365 , it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities 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. 10. The aforesaid views expressed by the apex Court in Dhanraj case (supra) has been followed and affirmed in New India Assurance Co. Ltd.-vrs.- Meera Bai and others (2006) 9 SCC 174 . 11. 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. 10. The aforesaid views expressed by the apex Court in Dhanraj case (supra) has been followed and affirmed in New India Assurance Co. Ltd.-vrs.- Meera Bai and others (2006) 9 SCC 174 . 11. In Oriental Insurance Co. Ltd. Vs. Smt. Jhuma Saha and Others, AIR 2007 SC 1054 , the Supreme Court has held as under: 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 which arises for consideration is that the deceased himself being negligent, the claim petition u/s 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 an injured person, a third person or in respect of damages of property. Thus, if the insured can not be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(1)(b) of the M.V. Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case. 12. The matter came up for consideration yet again before the apex Court in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, AIR 2007 SC 1609 , wherein it was observed as follows : As we understand Section 147(1) of the Act, an insurance policy there under need not cover the liability in respect of death or injury arising out of and in course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen's compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision can not therefore be used to enlarge the liability if is does not exist in terms of Section 147 of the Act. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsory cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, we liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, we liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is doubtful on the case put forwarded by the claimant, whether the deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand. 13. The aforesaid views expressed by the apex Court that a insurance policy issued in respect of a motor vehicle does not ipso facto cover the risk of the owner of the vehicle (insured), unless additional premium has been paid in that regard again came up for consideration before the Supreme Court in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others, AIR 2009 SC 1788 , wherein the Hon'ble Court while affirming the views expressed in the aforementioned authoritative pronouncements, has observed that where the claim has been made for the bodily injury or death to the owner of the vehicle, the insurance company can not be made liable to pay the compensation. 14. In the present case, the admitted facts are that the deceased Gangadhar Jena was the owner of the truck No.OR-04/5924 and was driving the said vehicle on 2.11.2001 at about 9.30 A.M., when it capsized near Badapokharia on N.H. No.5, which resulted in his death. The materials available on record goes to show that the accident took place due to rash and negligent driving by Gangadhar. On the basis of such facts, learned Tribunal with reference to the insurance policy (Ext.8), has come to find that no additional premium having been paid to cover the personal risk of the owner of the vehicle, the insurance company can not be made liable to pay the compensation to the claimants. 15. On the basis of such facts, learned Tribunal with reference to the insurance policy (Ext.8), has come to find that no additional premium having been paid to cover the personal risk of the owner of the vehicle, the insurance company can not be made liable to pay the compensation to the claimants. 15. From the schedule of premium given in the certificate of insurance (Ext.8) it is seen that no additional premium has been paid to cover the risk of death or bodily injury of the owner of the vehicle. It has not been shown that the said policy covers the risk of the owner (insured). An owner of the motor vehicle can only claim provided a personal accident insurance is taken out, on payment of requisite premium. 16. Applying the principles of law as discussed above to the facts the present case and keeping in view the findings of the learned Tribunal given in the impugned award and the reasons assigned in support of the same, no impropriety or illegality can be said to have been committed by the learned Tribunal, so as to warrant any interference by this Court in the present appeal. 17. The appeal being devoid of merits, the same is accordingly dismissed.