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The New India Assurance Company Ltd., Through Its Regional Manager Vs. Smt. Bimlesh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 5952 of 2001
Judge
Reported inII(2003)ACC677; 2003ACJ1454; (2003)133PLR783
ActsMotor Vehicles Act, 1988 - Sections 163A
AppellantThe New India Assurance Company Ltd., Through Its Regional Manager
RespondentSmt. Bimlesh and ors.
Appellant Advocate L.M. Suri and; Anita Kumari, Advs.
Respondent Advocate Sachin Mittal, Adv.
DispositionPetition allowed
Cases ReferredOriental Fire and General Insurance Co. Ltd. v. Shakuntala Devi
Excerpt:
- .....that under the terms and conditions of the insurance policy, the risk in respect of the life of owner/insured is not covered. the insurance policy was effective in respect of claim of third party under the provisions of the motor vehicles act, 1988 (hereinafter referred to as the 'act) and in respect of accidental damage of the jeep itself only and for this reason the claim petition in respect of death of owner/insured is not maintainable in law. 11. it next submitted that the contents of the fir showed that the death had occurred as a result of rash and negligent act on the part of the driver-cum-owner himself. at any rate, the petitioner was not liable before the tribunal as under section 163a of the act which finds place in chapter xi of the insurance of motor vehicle against the.....
Judgment:

K.C. Gupta, J.

1. This revision petition is directed under Article 227 of the Constitution of India by the New India Assurance Company Ltd., against the order dated 7.8.2001 (copy Annexure P-3) passed by the Motor Accident Claims Tribunal, Gurgaon, vide which it was held that the claim petition is maintainable.

2. Briefly stated, the facts are that Siri Bhagwan son of Ram Singh was the registered owner of Jeep bearing No. HR-26-G-0179 (hereinafter called the offending vehicle). He got it registered with the department of transportation as Maxi Cab. He himself was working as driver of the said Maxi Cab.

3. On 15.8.2000 at about 11.00 A.M. Siri Bhagwan was going in the offending vehicle from Pataudi to Rewari. In the way all of a sudden a dog came to cross the road. Hetried to save the dog and in that process the offending vehicle struck against the tree after going out of control. Due to this collision with the tree, Siri Bhagwan received serious injuries and died at the spot. Several other occupants of the offending vehicle alsoreceived injuries.

4. Smt. Bimlesh widow, Nisha and Sona minor daughters, Naveen minor son and Ram Singh father of Siri Bhagwan (deceased) filed a claim petition for the grant of Rs. 10 lacs as compensation on account of death of Siri Bhagwan.

5. In the original claim petition Smt. Bimlesh etc. had impleaded Siri Bhagwan deceased through his widow Bimlesh, being owner and driver of the offending vehicle but later on dropped respondent No. 2 Siri Bhagwan being a dead person and also on the objection which was taken by the insurer. Thus, the claim petition remains against New India Assurance Co. Ltd. only.

6. The Insurance Co. challenged the maintainability of the claim petition on the ground that the insurer was to indemnify the insured qua loss of third party and it was not to indemnify the insured for his own rash and negligence and thus Smt. Bimlesh etc. being legal heirs of deceased owner and driver of the offending vehicle could not claim compensation on account of his death in the accident. Several other pleas were also taken.

7. The Motor Accident Claim Tribunal vide order dated 7.8.2001 held that the claim petition was maintainable under Section 163A of the Motor Vehicles Act.

8. Aggrieved by the said order, the petitioner New India Assurance Co. Ltd. has filed the present revision petition.

9. I have heard Mr. L.M. Suri, learned Senior Advocate for the petitioner, Mr. Sachin Mittal, learned counsel for the respondents and carefully gone through the file.

10. A perusal of the claim petition (Annexure P-1) shows that Smt. Bimlesh etc. being the wiuow, children and father of Siri Bhagwan deceased filed the claim petition for the death of Siri Bhagwan son of Ram Singh. The said petition was filed against the New Indian Assurance Co. Ltd. and Siri Bhagwan being owner and driver (since deceased) through his widow Smt. Bimlesh. Later on, the name of respondent No. 2 was struck off as Siri Bhagwan was a dead person. The petitioner-Insurance Co. filed reply. It stated that under the terms and conditions of the Insurance policy, the risk in respect of the life of owner/insured is not covered. The insurance policy was effective in respect of claim of third party under the provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act) and in respect of accidental damage of the jeep itself only and for this reason the claim petition in respect of death of owner/insured is not maintainable in law.

11. It next submitted that the contents of the FIR showed that the death had occurred as a result of rash and negligent act on the part of the driver-cum-owner himself. At any rate, the petitioner was not liable before the Tribunal as under Section 163A of the Act which finds place in chapter XI of the insurance of motor vehicle against the third party risk. So, the claim qua third party was maintainable. It further stated that no person can file a claim petition against himself. Since, it is claimed that the driver of the offending vehicle was not third party, so it was not maintainable under Section 163A and 166 of the Act. Therefore, according to the petitioner, it was not a comprehensive insurance policy in which premium was paid to cover the risk in respect of life of the owner/insured but according to the insurance policy it was effective only in respect of claim of third party under the provisions of the Act.

12. Learned counsel for the petitioner contended that since the deceased who was driver of the offending Maxi Cab was himself owner and as such, was not a third party under the provisions of the Act, so, the Insurance Company was not required to indemnify him but was required only to indemnify the owner in case of third party loss and risk of self injuries and death was not covered under the said policy.

13. Learned counsel for the respondents contended that the offending vehicle was insured with the petitioner with effect from 30.9.1999 to 29.8.2000 and the premium was also paid to cover the risk of the driver of the offending vehicle as was clear from the perusal of the cover note of the insurance policy. He further contended that since the in-sured who was also the driver of the offending vehicle lost his life in the accident so, Smt. Bimlesh etc. being legal heirs of the deceased, were entitled to maintain the claim petition.

14. In my opinion, the contention of the learned counsel for the respondents is not tenable. Even if the driver is covered under the insurance policy/insurance cover then he also having the status of owner of the offending vehicle the insurance company is liable to indemnify the owner in case of third party loss. The authority of the Hon'ble Apex Court cited by the counsel for the respondents; Chimajirao Kanhojirao Shirks and Anr. v. Oriental Fire and General Insurance Co. Ltd. (2000-3)126 P.L.R. 490,(S.C.). is not applicabie to the facts of the present case. In that case the liability of the Insurance Co. was unlimited because it was mentioned as 'unlimited personal injury'. The plea that it was written by mistake was not taken into consideration. So, the compensation was allowed. Therefore, in the above-mentioned authority special premium was paid which covered the death and bodily injury of the insured and as such, compensation was granted to his legal representatives. It has been observed by this Court in United India Insurance Co, Ltd. v. Darshan Kaur etc., (2000-1)124 P.L.R. 826 that the insurer is only to satisfy the award against vehicle insured in respect of third party. The liability of the insurance company is to compensate insured towards the risk of third party and to satisfy the judgment and award passed against the insured in view of Sections 147 and 149 of the Act. Similarly, it was held in United India Insurance Co. Ltd. v. Etnoori Yadagiri Goud and Ors., 1995 A.C.J. 600 (Andhra Pradesh) that where the death of a motor cyclist takes place in an accident and that the motor cycle belonged to the brother of the deceased and was insured for third party risk, then the insurance company is not liable as the deceased was not a third party as he was driving the motor cycle himself. Same view was taken by Karnataka High Court in M. Akkavva v. New India Assurance Company Limited, 1988 A.C.J. 445 (Kar.) as under;-

'The vehicle involved a goods vehicle and son of the owner of the goods vehicle was accompanying the goods of his father being carried in the vehicle and the vehicle met with accident due to the negligence of its driver. Question arose whether the owner of the vehicle is to be compensated. Their Lordships of the Karnataka High Court held that owner of the Karnataka High Court held that owner of the vehicle who has the benefit of indemnity is himself not covered and his representative is in no better position unless he be an employee covered by the first proviso of Section 85(1)(b) of the Act. The idea behind this ratio was that the son was in no better position than the owner i.e. his father. In that case, the son of the owner of the goods vehicle was accompanying the goods and not as an employee. It was observed that basically a contract of motor insurance seeks to indemnify the owner of the vehicle against liability arising out of claims of third parties arising against the insured owner out of the use of the motor vehicle. A contract of insurance which stipulates to pay compensation for the death of the insured person himself cannot be said to be a contract of indemnity. If the owner of the vehicle, who has the benefit of indemnity is himself not covered by the policy, his representatives unless he be an employee covered by the first proviso to Section 5(1)(b) is in no better position in relation to the insurer's obligation or the absence of it.'

15. In the present case, it is not the case that the deceased was employed as driver but he is owner himself. Therefore, the liability also does not arise under the Workmen Compensation Act, 1923 in respect of death or bodily injury to the driver in view of Section 95 of the Act, 1939. The Allahabad High Court also in Oriental Fire and General Insurance Co. Ltd. v. Shakuntala Devi, 1991 A.C.J. 177 held that even in the case of comprehensive policy where death of owner/insured takes place, then in respect of death of owner/insured who was himself driving the vehicle and met with an accident, the insurer was not liable because the policy was in respect of damage to third party and not to the owner/insured of the vehicle.

16. In view of the above discussion, I hold that the order passed by the Motor Accident Claims Tribunal is illegal and the same cannot be sustained in the eyes of law.Consequently, this revision petition is accepted and the impugned order dated 7.8.2001is set aside and it is held that the petition is not maintainable against Insurance Company for compensation in respect of the death of the owner of the offending vehicle.


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