Chola Mandlam Thru- Ms General Insurance Company Ltd vs Ambika Soni

Present is an insurer’s appeal under Section 173 of the Motor Vehicles Act. Challenge is to the award dated 08.08.2014 passed by Additional Motor Accident Claims Tribunal, Gariyaband in Claim Case No.06/2012. Vide the impugned award, the Tribunal has in a death case of the owner of the insured vehicle itself has granted a compensation of Rs.9,57,546/- with interest @ 9 percent per annum from the date of application.

The solitary contention of the counsel for the appellant-insurance company is that it is a case where on 17.10.2011 a TATA Safari bearing registration No.CG-04-HB-1555 owned by the deceased Purnanand Soni, insured by the appellant Chola Mandlam MS General Insurance Company Ltd., suffered injuries as a result of an accident that occurred when the TATA Safari turned turtle to which he later succumbed. The vehicle was being driven by the respondent No.5 Anil Thakur.

The contention of the counsel for the appellant is that since the deceased was traveling in his own vehicle and there was no other vehicle involved in the said accident, the claim of the claimants under Section 166 of the Motor Vehicles Act itself would not had been maintainable as the owner could could not have filed the case against himself particularly when he himself was travelling in the said vehicle. It is further contention of the appellant that neither would the application of the claimants be maintainable under Section 163-A of the Motor Vehicles Act.

However, on a query being put to the counsel for the appellant, he fairly concedes that the policy that was issued was a comprehensive policy which also covered the risk of the owner and driver and the risk of the owner and driver was to the extent of rupees two Lakhs under personal accident risk. The instant was also a case of personal accident risk and therefore the insurance company would had been liable to make a payment only to the extent of Two Lakhs and not beyond that.

For ready reference the provisions of Sections 165 and 166 of the Motor Vehicles Act, 1988 is being reproduced hereinunder:

“165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.”

This High Court itself in case of Oriental Insurance Company Ltd. Vs. Pooranlal & Another, 2005 SCC Oniline Chh 23 (AIR 2006 Chh 77) has in paragraph 9 held as under:

“9. Thus from the conjoint reading of Sections 165 and 166 of the Act it is manifestly clear that only third party can prefer claims for compensation in respect of accidents involving the death of or bodily injury to, person arising out of use of motor vehicle, or damages to any property. It, is not disputed that the instant application was preferred by respondent No. 1/claimant who Is also insured owner of the vehicle and as such he is not the third party and thus the claim petition at his instance cannot be maintained.”

The Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Rajni Devi & Others, 2008(5)SCC 736 has in paragraph 9 referring to a couple of decisions of Supreme Court itself has held as under:

“9. In Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha & Ors [AIR 2007 SC 1055], it was held :

"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 accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.

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 respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.

In Dhanraj v. New India Assurance Co. Ltd.2 it is stated as follows :

"8. Thus, an insurance policy covers the liability incurred by the insured in 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. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

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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 premium of Rs 4989 paid under the heading 'Own damage' is for covering liability towards personal injury. Under the heading 'Own damage', the words 'premium on vehicle 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."

In the same judgment, the Supreme Court further in paragraph 11 has held as under :

“11.The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to.”

Given the aforesaid facts and circumstances of the case and the legal decision as has been enumerated by the Supreme Court as also by this court in the aforesaid decisions rendered, this court is of the opinion that the impugned award therefore would not be sustainable in its entirety and the appeal to the aforesaid extent stands allowed.

The impugned award dated 08.08.2014 therefore stands modified to the extent that the only compensation payable to the claimants would be to the extent of the risk covered under the comprehensive policy issued by the appellant insurance company and that is to the extent of Rs.2,00,000/-. Thus, the claimants would be entitled for a compensation of Rs.2,00,000/-. Awarding of the interest part shall remain intact as awarded by the Tribunal.

It is ordered that the appellant insurance company shall make the payment of Rs.2,00,000/- after adjusting the statutory deposit that has been made along with interest within a period of 60 days from the date of receipt of copy of this order.