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2016 DIGILAW 1033 (MP)

Ram Dayal Kondar v. Sankarlal Kondar

2016-11-11

ANJULI PALO

body2016
ORDER : Smt. Anjuli Palo, J. 1. This appeal has been preferred by the claimants under Section 173 of Motor Vehicle Act, 1988 being aggrieved by the order dated 30.06.2005 passed by IV Additional Member Motor Accident Claims, Chhatarpur (MP) in MVC No. 56/2001 whereby the claim petition filed by the appellants was dismissed. 2. In short, appellants case is that they had filed a claim case under Section 166 of Motor Vehicles Act, 1988 and prayed for compensation to the tune of Rs. 5,00,000/- on account of death of Ramkripal. Claim petition was dismissed by the learned Tribunal holding that, at the time of accident deceased Ramkripal was travelling in his own tractor which was owned by his wife Munnibai (Respondent no. 2). Hence, deceased did not come under the category of 'Third Party'. It was also not proved that the accident was caused due to rash and negligent driving by respondent no.1. 3. Claimants/appellants being aggrieved and dissatisfied with the said award preferred this appeal on the ground that the Tribunal has failed to consider the evidence produced by the claimant. The impugned order passed by the learned Tribunal is illegal and is liable to be set aside. Hence, appellants prayed that appropriate award of compensation be passed in favour of the appellants. 4. On the evidence produced by applicants itself, learned Tribunal has found that at the time of the accident, a cow suddenly came running in front of the offending tractor and while trying to save the cow, the tractor turned turle. Learned Tribunal also found that there has been no evidence on record regarding the rash and negligent driving by the driver of the offending tractor. The FIR was lodged belatedly. 5. Deceased Ramkripal was the husband of Munnibai respondent no. 2. Admittedly she was the owner of the offending tractor. Therefore, deceased does not come under the category of 'third party'. On the above grounds, the claim filed by applicants was dismissed by the learned Tribunal. 6. Learned counsel for the appellant contended that any person other than the insurer who are parties to the insurance is a third party. Deceased Ramkripal was a "third party". Hence appellants are entitled to receive the compensation from respondent no. 3. 7. Learned counsel for the respondent no. 6. Learned counsel for the appellant contended that any person other than the insurer who are parties to the insurance is a third party. Deceased Ramkripal was a "third party". Hence appellants are entitled to receive the compensation from respondent no. 3. 7. Learned counsel for the respondent no. 3 contended that the insurer would not be liable for any bodily injury or death of a "third party" in an accident unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the policy of the insurance. Learned counsel for the respondent placed reliance on the case of Bhav Singh v. Savirani & Ors. 2008 (I) MPLJ 72 where in it is held that- "Mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 or under terms and conditions of the insurance policy. This will be clear from the judgment of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC) in which the provisions of Section 95(a) and 95(b)(i) of the Motor Vehicles Act, 1939 were considered and it was held by the Supreme Court that the plea that the words 'third party' are wide enough to cover all persons except the insured and the insurer is negatived as the insurance cover is not available to the passengers as would be clear from the provisions of Section 95 of the Motor Vehicles Act, 1939. Paragraphs 21 and 22 of the judgment of the Supreme Court in Pushpabai Purshottam Udeshi (supra) are quoted herein below: 21. Section 95(a) and 95(b)(i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960 and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person 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) except where the vehicle in which passengers are carried for hire or reward or by a reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. 22. Therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act. In a Full Bench judgment delivered by this Court in Smt. Sunita Lokhande and Ors. v. The New India Assurance Co. Limited and Ors. I.L.R. (2007) M.P. 1145, have quoted paragraph 17 of the judgment of the Full Bench in Jugal Kishore and others v. Ramlesh Devi & Ors, 2003 (4) MPLJ 54 to hold that the insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person other than the insurer and the insured who are parties to the insurance policy is a 'third party'. The insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the policy of insurance. Hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy." 8. Hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy." 8. The expression "third party" would mean a party other than the contracting parties to the insurance policy and would include everyone, be it a person travelling in other vehicle, one walking on the road, or a passenger in the vehicle itself which is the subject matter of the insurance policy. Insured who is a party to the insurance policy is not a third party for the purpose of Chapter XI of the Act. Thus, any person other than the insurer and the insured who are parties to the insurance policy can only be termed as "third party". 9. The liability of the insurer to indemnify the insured in respect of death or bodily injury suffered by a passenger or an employee would be covered by the provisions of Section 147 of the Act or the terms and conditions of the insurance policy. 10. In the light of the above principles laid down by Hon'ble Apex Court deceased Ramkripal does not come under the definition of "third party" under Section 95(a) and 95(b) of the Motor Vehicles Act. He had not carried for hire or reward or he had not by reason of or in pursuance of a contract of employed, travelled in the offending vehicle. 11. In present case, deceased was the father of non-applicant no. 1 (driver of the offending vehicle) and husband of non-applicant no. 2 (owner of the offending vehicle). He died due to the accident of his own vehicle. He cannot be termed as "third party". His risk was not covered by insurance policy. Therefore, the learned Tribunal has not committed any error or illegality in rejecting the aforesaid claim. 12. In view of the aforesaid, this appeal stands dismissed.