Judgment · High Court · 2012

This is an appeal filed under Section 173 of the M. V. Act, 1988 against the jud gment and award dated 03.01.2006 passed by the Motor Accident Claims Tribunal, K amrup, Guwahati in MACT Case No.2886 of 2004. There is no dispute about the accident. The claimant-respondent No.1 herself has stated in the claim petition as under. (cid:28)That on the fateful day of accident on 3.7.04 while the injured/claimant was dr iving the vehicle No. AS-01/A-5864 proceeding from Baruah Petrol Pump, Ambari to wards Silpukhuri side in the meantime the said vehicle met with an accident at t he GNB Road, Ambari, as a result of which the injured person sustained the griev ous injuries on his person. (cid:29) The Tribunal also while considering the Issue No.1 has returned the following fi nding. (cid:28)Miss Monika Sarma, is the claimant/injured is examined as PW-1. Her evidence is that on 03.07.04 at about 3.30 PM while she was going on GNB Road by riding Kin etic Honda and when reached near Baruah Petrol Pump it met with an accident and as a result of which she sustained fracture injury on her left leg. After the ac cident, she took treatment at Down Town Hospital as an indoor patient for 6 days . An operation was done and plate was removed on 15.07.04 and stayed in the Dow n Town Hospital for two days. (cid:29) The policy that the insurance company and the owner of the said vehicle were ent ered into is an ’act only policy’. Mr. Dutta, learned counsel for the appellant submitted that whatever the nature of the policy may be, the insurance company h as no liability to shoulder with, inasmuch as the daughter of the owner while dr iving the insured vehicle has caused the accident. As such, the insurance compan y has got no liability since their liability is restricted to the third party ri sk only by the insurance policy. Mr. Dutta, learned counsel for the appellant has relied on a decision of the ape x Court as rendered in the Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt) and o thers as reported in (2007) 9 SCC 263 where the apex Court held as under: (cid:28)10. 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 a ccident did not involve motor vehicle other than the one which he was driving, t he question which arises for consideration is that the deceased himself being ne gligent, the claim petition under Section 166 <javascript:fnOpenGlobalPopUp(’/ba /disp.asp’,’2567’,’1’);> of the Motor Vehicles Act, 1988 would be maintainable.

#11. 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 re spect of damages of property. Thus, if the insured cannot be fastened with any l iability under the provisions of the Motor Vehicles Act, the question of the ins urer being liable to indemnify the insured, therefore, does not arise.

#12. In Dhanraj v. New India Assurance Co. Ltd. <javascript:fnOpenGlobalPopUp (’/citation/crosscitations.asp’,’MANU/SC/0823/2004’,’1’);> it is stated as follo ws: (SCC pp.555-56, paras 8 & 10)

#8. Thus, an insurance policy covers the liability incurred by the insured i n respect of death of or bodily injury to any person (including an owner of the goods or his authorised 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. Se ction 147 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> does not re quire an insurance company to assume risk for death or bodily injury to the owne r of the vehicle.

#10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the pr emium of Rs.4989 paid under the heading ’Own damage’ is for covering liability t owards personal injury. Under the heading ’Own damage’, the words ’premium on ve hicle and non-electrical accessories’ appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.

#13. The additional premium was not paid in respect of the entire risk of dea th or bodily injury of the owner of the vehicle, if that be so, Section 147(b) < javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be att racted in the present case. (cid:29) Mr. Dutta, learned counsel also referred three other apex Court decisions as rep orted in Oriental Insurance Co. Ltd. v. Rajni Devi and others as reported in (20 08) 5 SCC 736 where Jhuma Saha (Smt) and others (supra) was considered and simil ar finding has been returned by the apex Court. In New India Assurance Company Limited v. Sadanand Mukhi and others as reported in (2009) 2 SCC 417 the apex Court held as follows: It is not a case where even Section 163A <javascript:fnOpenGlobalPopUp(’ (cid:28)12. /ba/disp.asp’,’2562’,’1’);> of the Act was resorted to. The Respondents filed an application under Section 166 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’256 7’,’1’);> of the Act. Only an Act policy was taken in respect of the motor vehic le. Submission of the learned Counsel that being a two wheeler, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident a rising out of the use thereof would come within the purview of the term \a perso n\ as provided for in Section 147 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’ 2545’,’1’);> of the Act, in our opinion, is not correct.

#15. Keeping in view the aforementioned Parliamentary object, let us consider the fact of the present case so as to consider as to whether the insurer is lia ble to pay the amount of compensation in relation to the accident occurred by us e of the vehicle which was being driven by the son of the insured. We may, for t he said purpose, notice certain decisions covering different categories of the c laims. In United India Insurance Co. Ltd. v. Tilak Singh <javascript:fnOpenGlob alPopUp(’/citation/crosscitations.asp’,’MANU/SC/8088/2006’,’1’);>this Court cons idered the provisions of the Motor Vehicles Act, 1939 as also the 1988 Act and i nter alia opined that the insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance poli cy was a statutory policy which did not cover the gratuitous passenger.

#19. In view of the aforementioned authoritative pronouncements, we have no hesit ation of hold that the insurance company was not liable. The impugned judgment, therefore, cannot be sustained. It is set aside accordingly. The appeal is allow ed. No costs (cid:29). In the case of Sadanand Mukhi and others (supra) the apex Court held in no uncer tain terms that the insurance company has no liability to discharge. In Ningamma and another v. the United India Insurance Company Ltd. as reported i n (2009) 13 SCC 710 the similar issue was again considered by the apex Court and the precedent was reexamined but they affirmed the precedent without any change . This Court also in the New India Assurance Co. Ltd. v. Imkong Toshi Jamir @ Tosh i Jamir as reported in 2006 (3) GLT 379 held as under: (cid:28)4. o pay compensation for the injuries sustained by the owner of a vehicle, particu larly, when the owner himself was driving the vehicle? The answer to this questi on can no longer be said to be in doubt or uncertain, for, it is no longer res i The question, therefore, is this whether an insurer can be made liable t ntegra that the liability of an insurer is only to indemnify the insured against the liabilities, which the insured may incur towards a third person or in respe ct of damage to property. It is, therefore, clear that when the owner of a vehic le himself sustains injury, he cannot be said to have become liable to pay compe nsation to any one and since the owner, in such a case, incurs no liability, the insurer can also not be fastened with any liability. In such a case, it is real ly not material whether, when the accident took place and the owner sustained in juries, the owner was himself driving the vehicle or someone else was driving th e vehicle. The law, in this regard, has been succinctly laid down by the Apex Co urt in Dhanraj v. New India Assurance Co. Ltd. and Anr. reported in <javascript :fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0823/2004’,’1’);>(200 4) 8 SCC 553, wherein, the Apex Court has observed and held as follows:

#8. Thus, as insurance policy covers the liability incurred by the insured f in respect of death of or bodily injury to any person (including an owner of th e goods or his authorised representative) carried in the vehicle or damage to an y property of a third party caused by or arising out of the use of the vehicle. Section 147 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> does not require an insurance company to assume risk for death or bodily injury to the ow ner of the vehicle.

#9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi it has been h eld that the liability of an insurance company is only for the purpose of indemn ifying the insured against liabilities incurred towards a third person or in res pect of damages to properly. Thus, where the insured, i.e., an owner of the vehi cle has no liability to a third party the insurance, company has no liability al so. Because of what has been pointed above, it is abundantly clear that the 5. owner of the vehicle, in the present case, had not incurred any liability and in view also of the fact that no premium was paid to the insurer for personal inju ries that may be caused to the owner of the vehicle, the insurer could not have been directed to pay compensation to the owner of the vehicle, i.e. the responde nt herein (cid:29). The cases as cited by Mr. Dutta, learned counsel for the appellant squarely cove rs the present appeal inasmuch as the claimant-respondent has slipped into the s hoes of the owner, not to the category of ’the third party’. As corollary to this, the impugned judgment and award is set aside holding that the injured have no right to claim any liability against the appellant. For the reasons as aforesaid, the appeal stands allowed to the extent as indicat ed above. However, there shall be no order as to cost. Statutory deposit be returned to the appellant forthwith.