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2014 DIGILAW 1027 (GUJ)

United India Insurance Co. Ltd. v. Sumitraben

2014-09-16

BHASKAR BHATTACHARYA

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JUDGMENT : BHASKAR BHATTACHARYA, J. 1. This appeal under section 173 of Motor Vehicles Act (for short 'the Act') is at the instance of one of the insurance companies in a proceeding under section 166 of the Act and is directed against an award dated 25.5.2005 passed by the Motor Accidents Claims Tribunal (Aux.), Panchmahals at Godhra in M.A.C.P. No. 1852 of 2002, thereby awarding a sum of Rs. 5,15,060/- with interest at the rate of 9 per cent per annum from the date of filing of the application till realization by holding that the driver and insurer of the jeep and owner, driver and the insurer of Qualis car, the other involved vehicle, would be jointly and severally liable inasmuch as the owner of the jeep himself is the deceased. The following facts are not in dispute. On 8.7.2002, at about 1930 hrs, a jeep, bearing No. GJ 17-C 4276, insured by the appellant insurance company, and a Qualis car bearing No. RJ 27-IC 2812, insured by New India Assurance Co. Ltd., had a head-on collision, resulting in the death of the owner of the jeep. Claim application was filed by the heirs and legal representatives of the owner of the jeep making its own driver and the insurer and at the same time, the driver and the insurer of Qualis car, as parties. 2. As indicated earlier, the learned Tribunal, on consideration of the materials on record, held that the drivers of both the vehicles were equally negligent and consequently passed the award by dividing the liability between the driver and the insurer of the jeep on one side and the driver and insurer of Qualis car jointly and severally. 3. Being dissatisfied, United India Insurance Co. Ltd., the insurer of the jeep, has come up with the present appeal. 4. Mr. R.H. Mehta, the learned advocate appearing on behalf of the appellant, has advanced a pure question of law in support of this appeal. According to Mr. Mehta, though the insurance policy of the jeep was a comprehensive one and at the same time, it had covered the paid driver of the vehicle as well as 9 passengers, there was no liability of his client so far as the injury and the death of the owner of the vehicle even if he happened to be the occupier of the vehicle is concerned. Mr. Mr. Mehta, therefore, submits that at least his client had no liability to pay compensation to the heirs of the insured as in this case no award has been passed against the insured. 5. Mr. Dave, the learned advocate appearing on behalf of the heirs and legal representatives of the owner of the jeep and the claimants, however, opposes the aforesaid contention and submits that additional premium having been taken for the occupier of the jeep and the policy being comprehensive one, the moment it is established that the owner of the jeep is also the occupier, the insurance company, the insurer of the jeep, is liable to compensate his client. 6. Mr. Parikh, the learned advocate appearing on behalf of the insurer of Qualis car, although appeared, has not made any submissions in view of the fact that his client has accepted the award and no cross-objection or appeal has been filed by the claimants for further fastening any liability on his client. 7. Therefore, the only question that arises for determination in this appeal is whether the appellant is liable to pay the compensation to the heirs and legal representatives of the owner who is the insured. 8. After hearing the learned counsel for the parties and after going through the materials on record, I find that it is settled law that in a case where compensation is claimed for the death or injury of the owner of the vehicle who is insured, the contract of insurance being covered by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. As pointed out by the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, , 2008 ACJ 1441 (SC), the liability under the Motor Vehicles Act being cast on the owner of the vehicle, if the heirs of the owner are the claimants, they cannot maintain such an application against the owner. 9. I find substance in the contention of Mr. Mehta that section 147 of the Act does not require an insurance company to assume the risk for death or bodily injury to the owner of the vehicle. As pointed out by the Apex Court in the case of Dhanraj v. New India Assurance Co. 9. I find substance in the contention of Mr. Mehta that section 147 of the Act does not require an insurance company to assume the risk for death or bodily injury to the owner of the vehicle. As pointed out by the Apex Court in the case of Dhanraj v. New India Assurance Co. Ltd., , 2005 ACJ 1 (SC), where the policy covered any risk or injury of the owner himself by payment of premium for that purpose, in that case, the owner is entitled to get compensation for the injury caused to him. 10. In the case before us, undisputedly, there has been no additional premium for compensating the owner for the injury or death and thus, in the absence of a specific clause in the policy, the owner or his heirs cannot take the benefit of the premium paid for the injury of an occupier. The word 'occupant' used in the policy necessarily does not include the insured. 11. I, thus, find that in the facts of the present case, Claims Tribunal committed a substantial error of law in asking the insurance company to take the liability of the insured himself when the heirs and legal representatives of the insured are the claimants. I, thus, allow this appeal and modify the award to this extent that the appellant will have no liability to pay any amount to the heirs and legal representatives of the deceased owner. 12. It appears that as a condition of stay of execution of the award impugned, the appellant deposited a sum of Rs. 3,26,213/- before the Tribunal pursuant to the order passed by this court. Now that this appeal has been allowed, the Tribunal is directed to release the entire amount with interest accrued thereon in favour of the appellant insurance company. 13. I make it clear that I have not gone into the question as to the right of the claimants regarding execution of the award against their own driver. The Registry is directed to immediately send back the record and proceedings to the Tribunal. No costs.