Judgment :- Ashim Kumar Banerjee.J: CLAIMANT’S CASE BEFORE THE TRIBUNAL Sk. Kamaluddin was the owner of an Ambassador car having registration no.W.B.J-9324. He earned rupees four thousand to five thousand per month. On May 31, 2000 Kamaluddin was driving the said Ambassador car when the offending vehicle, a Maruti Van, having registration no.W.B.V7655 dashed the ambassador car near Banamali Hotel on National Highway-6, P.S. Bagnan. The accident was caused due to rash and negligent driving of the offending vehicle. Kamaluddin was rushed to Bagnan Hospital with multiple injuries. He was shifted to Uluberia Hospital and then to Midnapur. After a prolonged treatment, he was declared disabled to the extent of forty one per cent. He claimed a sum of Rs.1.5 lacs as compensation vide application dated August 5, 2000 made under Section 166 of the Motor Vehicles Act, 1988. In his application he contended that Shri Ram Natayan Yadav, the owner of the offending vehicle did not pay any compensation to him. OBJECTION a) National Insurance Company Limited The National Insurance was implicated as the insurer of the offending vehicle. It filed objection dated November 3, 2000 inter alia, claiming that the offending vehicle was not, at all involved in the accident. Moreover, on the date of the accident there was no valid insurance cover making the concerned Insurance Company liable for payment of compensation. b) United India Insurance Company Limited United India insured the Ambassador car. It filed objection inter alia, contending that the Policy of Insurance did not cover the risk of the driver. In paragraph 9 of the objection, the Insurance Company categorically contended that the Policy of Insurance did not cover the risk of the insured himself as a driver or otherwise. EVIDENCE The claimant deposed as PW-1. He was consistent on his claim. He contended that he had been treated privately by Dr. D.P. Roy at Midnapur. He got his left wrist operated at Nityananda Nursing Home, Bankura and stayed there for twenty/twenty-two days. He could not work normally with his left hand. He was earning rupees four to five thousand per month. He did not file his birth certificate to prove his age. According to him, he was aged about twenty-four years at the time of deposition that took place on August 20, 2002. He could not work normally with his left hand. He was earning rupees four to five thousand per month. He did not file his birth certificate to prove his age. According to him, he was aged about twenty-four years at the time of deposition that took place on August 20, 2002. JUDGMENT IMPUGNED The learned Judge considered the rival contentions as also the precedents cited at the Bar which were inter alia, as follows :- i) 1989 Accidents Claims Journal Page-21 (Mathew Koshy –VS- Oriental Insurance Company Limited) ii) 1991 Accidents Claims Journal Page-22 (United India Insurance Co. Ltd. –VS-Kantabai & Ors.) iii) 2000 Accidents Claims Journal Page-134 (Hemlata Sahu & Ors. –VS- Ramadhar & Anr.) iv) 2000 Volume-III Transport and Accident Cases Page- 585, also reported in 2000 Volume-VI Supreme Court Cases Page-622 (Chimajirao Kanhojirao Shirke & Anr. –VS-Oriental Fire & General Insurance Co. Ltd.) v) 2001 Accidents Claims Journal Page-749 also reported in 2000 Volume-II Calcutta Law Times Page-449 (M/s. United India Insurance Co. Ltd. –VS- B. Hemawati & Ors.) The learned Judge held the owner of the offending vehicle responsible for the accident and made him liable for payment of rupees seventy six thousand and five hundred. The learned Judge however, did not award any interest. The learned Judge also held the insurer of the Ambassador car being United Insurance Company Limited liable and asked the Insurance Company to share the liability along with the owner of the offending vehicle equally that gave rise to the present appeal by the United India Insurance Company Limited. RIVAL CONTENTIONS We have heard Mr. Kamal Krishna Das, learned counsel appearing for the Insurance/appellant as well as Mr. Krishanu Banik, learned counsel appearing for the respondent no.1/claimant. Mr. Das cited the Division Bench decisions of various High Courts to support his contention that the Policy of Insurance did not cover the risk of the owner and/or driver. The decisions are as follows :- i) 1991 Accidents Claims Journal Page-177 (Oriental Fire & Genl. Ins. Co. Ltd. –VS-Shakuntala Devi) ii) 2000 Accidents Claims Journal Page-134 (Hemlata Sahu & Ors. –VS- Ramadhar & Anr.) iii) 2003 Accidents Claims Journal Page-1974 (New India Assurance Co. Ltd. –VS-Krishna Khatua & Ors.) iv) 2007 Accidents Claims Journal Page-818 (Oriental Insurance Co. Ltd. –VS- Jhuma Saha & Ors.) v) 2007 Accidents Claims Journal Page-821 (New India Assurance Co. Ins. Co. Ltd. –VS-Shakuntala Devi) ii) 2000 Accidents Claims Journal Page-134 (Hemlata Sahu & Ors. –VS- Ramadhar & Anr.) iii) 2003 Accidents Claims Journal Page-1974 (New India Assurance Co. Ltd. –VS-Krishna Khatua & Ors.) iv) 2007 Accidents Claims Journal Page-818 (Oriental Insurance Co. Ltd. –VS- Jhuma Saha & Ors.) v) 2007 Accidents Claims Journal Page-821 (New India Assurance Co. Ltd. –VS- Meera Bai & Ors.) OUR VIEW We have considered the rival contentions. We have carefully perused the judgment and order impugned herein passed by the learned Judge of the Tribunal. The learned Judge rightly held the owner of the offending vehicle liable for compensation. We, however, do not find any logic as to how the learned Judge could ask the Insurance Company of the Ambassador car to share the liability with the owner of the offending vehicle. It is true that the said vehicle was involved in the accident. There was nothing on record to show that the Ambassador car was at fault. If the Ambassador car was not at fault the Insurance Company of the said car could not be held liable. Moreover, the Policy of Insurance would cover the risk of the third party as also the vehicle. In case of any damage caused to the vehicle or any third party, the Insurance Company would be held liable. The owner’s risk was not covered by the Policy of Insurance. In the case of Meera Bai (Supra), the Policy of Insurance categorically covered “paid driver and/or conductor”. The owner risk was not covered. The Delhi High Court observed, owner himself who was driving the vehicle, was not covered under the Policy of Insurance. In the case of Jhuma Saha (Supra), the owner while driving the vehicle died in the accident. Since Policy of Insurance did not cover the owner’s risk the Delhi High Court did not allow the claim. In the case of Krishna Khatua (Supra), the Division Bench of our Court held that the Policy of Insurance would make the insurer liable to only indemnify the insured in case he is liable to pay compensation, meaning thereby only, the third party risk was covered. In the said case also the owner died in the accident, the claim made by the heirs was rejected. Similar view was taken by the Division Bench of the Allahabad High Court in the case of Shakuntala Devi (Supra). In the said case also the owner died in the accident, the claim made by the heirs was rejected. Similar view was taken by the Division Bench of the Allahabad High Court in the case of Shakuntala Devi (Supra). Though several precedents were cited before the Tribunal, the Tribunal referred to the decision in the case of Hemlata Sahu (Supra) where the Jabalpur Bench of the Madhya Pradesh High Court observed that the motor accident claim would relate to the risk covered by the Policy of Insurance and not beyond. In the said case, the deceased was driving a scooter, when he was confronted with a cyclist, he fell down and ultimately, succumbed to injury. His heirs made a claim against the Insurance Company who insured the scooter. The Bench observed that the policy of insurance did not cover the insured. In the case before us, admittedly the owner of the Ambassador car driving the same, died in the accident. His risk was not covered by the Policy of Insurance. The Tribunal referred to this judgment, however misapplied the same while asking the Insurance Company to share the compensation with the owner of the offending vehicle. In the case of Kantabai (Supra), the Division Bench of the Bombay High Court observed that the liability of the third party risk could not be unlimited or higher than the statutory liability in case of a comprehensive policy. In the case of B. Hemawati (Supra), the Division Bench of our Court held that Section 95 would require a Policy to cover the risk of the passengers who are not carried for hire or reward. Gratuitous passengers are not covered by the Policy of Insurance however, that would not prevent an insurer from entering into the contract of insurance covering a risk wider than the minimum requirement of the statute. On considering the policy involved therein, the Division Bench held the victim’s kin entitled to compensation. In the case of Chimajirao Kanhojirao Shirke (Supra), the Apex Court considered a Policy of Insurance having a tag “unlimited personal injury and property damages”. The Apex Court observed that such unlimited injury would definitely be restricted to the maximum sum assured under the policy. In view of the settled legal position, in our view, the learned Judge erred in asking the insurer of the Ambassador car to share the liability of the offending vehicle. The Apex Court observed that such unlimited injury would definitely be restricted to the maximum sum assured under the policy. In view of the settled legal position, in our view, the learned Judge erred in asking the insurer of the Ambassador car to share the liability of the offending vehicle. RESULT The appeal succeeds and is allowed. The judgment and order impugned directing United India Insurance Company Limited to pay half of the compensation so fixed by the Tribunal, is set aside. The owner of the offending vehicle would have to bear the burden of payment of entire compensation as directed by the Tribunal. The appeal is thus disposed of without any order as to costs. DIRECTION Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis. Shukla Kabir (Sinha), J: I agree.