The New India Assurance Company Limited v. Dr. Ravi Rawlley & Ors.

Mr. Ashwani Talwar, Advocate, for the appellant. None for the respondents. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral)

1. The Insurance Company is on appeal against the compensation that has been awarded against the Insurance Company. The petitioners are claimants seeking for compensation for death of the mother, who was a passenger, owner of the vehicle, which was driven by the father of the claimants. Admittedly, there had been a valid insurance at the relevant time when the accident took place. The case survives for consideration of whether compensation is possible for death of their mother since the person that drove the car was the father, he being a tort feasor himself, the question of asking for compensation for his death by his children did not arise. FAO No.473 of 1999 (O&M) - 2 -

2. The learned counsel appearing on behalf of the appellant would state that the mother, who was the owner of the vehicle ,and who was insured, was not specifically covered under the policy of insurance and the claimants were not entitled to obtain any compensation against the respondents. It was the further contention on behalf of the Insurance Company that the policy of insurance makes provision for indemnification of the claim against the insured and in this case, the insured herself having died. There is no person for whom such an indemnity could be extended and, therefore, the appellants are not entitled to seek for the claim.

3. Yet another point of contention made by the appellants on behalf of the Insurance Company is that the quantum of compensation is high. The Tribunal ought to have allowed the contest on the question of compensation as well and an application under Section 170 of the MV Act to the contest for permission to the case on all grounds had not been disposed of.

4. As regards the first contention that there was no valid insurance cover to answer the claim of the petitioners, the counsel relies on the policy of the insurance which has been filed as Ex.R/6. I see from the insurance policy cover that it is a commercial policy and the premium of Rs.3,859/- has been paid. Learned counsel appearing for the Insurance Company relies on a judgment of the Hon'ble Supreme Court in Oriental Insurance Company Limited Vs. Rajni Devi and others (2008) 5 SCC 736 that lays down that Section 163-A of the Motor Vehicles Act cannot have an application with regard to an accident FAO No.473 of 1999 (O&M) - 3 - where the owner of the motor vehicle himself is involved. It must be remembered in this case that the claim for compensation is made under Section 166 of the Motor Vehicles Act and therefore, invoking Section 163-A does not arise. Still the very same judgment referred to above also adverts to a situation as to when the liability of insurer would arise where a third party is involved, the liability of the insurance company would have unlimited liability. If, on the other hand, the compensation claim is for death of the owner or any passenger in the vehicle, the contract of insurance being governed by the contract qua the insured, the claim of the insurance company would have to come within the terms thereof. It may not be possible to set out as a general proposition that whenever the owner of the vehicle is involved, who is himself insured, the Insurance Company will be free from liability. It has to invariably depend on the terms of the contract of insurance. If under a contract, an insured secures a valid cover for death or injury arising to himself, which is normally understood in common parlance as a personal accident claim, the insurance company would still be liable and in such a case, an argument that there is no person to be indemnified does not make any meaning.

5. In this case, the terms of the policy issued as a Commercial Vehicle Miscellaneous Type B Policy sets the limits of liability as follows:- (a) Limit of the amount of company's liability under Section II-(1) (i) in respect of any one accident as per the Motor Vehicles Act and the limit of the liability of the company under Section II-(1) (ii) in respect of any claim or series of claim arising out of one accident Rs.6,000/-. FAO No.473 of 1999 (O&M) - 4 - An owner is not a third party in any sense and therefore, Section II-1(i) which refers to death or bodily injury caused by or arising out of use of motor vehicle by a 3rd party does not apply. Section II-1(ii) refers only to damage to property caused by the vehicle. The claimants before the Motor Accident Claims Tribunal will have a cause of action against the Insurance Company only if the Insurance Company had covered the risk for the owner of the vehicle travelling in his own vehicle where a personal accident cover is provided. The owner travelling in his own vehicle is not a third party to whom a compulsory insurance is necessary under Section 147 of Motor Vehicles Act. There is no clause in insurance policy which makes the insurer liable for the death of the owner travelling in his own vehicle.

6. The Insurance Company, therefore, under the circumstances cannot be made liable and the finding to the said effect by the judgment of the Tribunal is not tenable. The award of the Motor Accident Claims Tribunal is, under the circumstances, set aside and the appeal is allowed.

7. A cross appeal has been filed by the claimants seeking for enhancement to the claim. In the light of the view that I have taken that the insurance company is not liable, the claim for enhancement also does not arise, for the insured in this case was also the deceased and whose death is made as the cause of action for the claim by the claimants. The question of making the estate of deceased cannot also avail where claimants are representatives of the estate of the deceased. The cross appeal is, therefore, dismissed.

28.06.2010 sanjeev (K.KANNAN) JUDGE