The Oriental Insurance Company Limited vs Vanita and Others

A.P. Bhangale, J—Appellant Insurance Company has challenged dated 17th October 2008 delivered by the Chairman, Motor Accident Claims Tribunal, Bhandara in Claim Petition No. 205 of 2001 whereby compensation of Rs. 2 lacs has been awarded to the claimants/respondents No. 1 to 5.

Brief facts of the case are, Devrao Dajiba Randive was going from Sakoli to Sangadi by his own auto-rickshaw bearing registration No. MH-35/2180, carrying passengers. Front tyre of the auto-rickshaw burst and the rickshaw turned turtle and it fell on the person of Devrao. Devrao sustained injuries. Initially, he was taken to Medical Hospital, Sakola and from there to the General Hospital, Bhandara and then he was referred to the Government Medical College and Hospital, Nagpur. Doctors treated Devrao. However, he succumbed to the injuries on 2.9.2000. Claimants claimed that Devrao was earning Rs. 100/- per day and was maintaining big family. He was the only earning member in the family. Claimants restricted their claim for compensation of Rs. 2 lacs.

Appellant Insurance Company defended the claim on the ground that deceased Devrao was rash and negligent in driving his vehicle and he was himself responsible for the accident and claimants were not entitled to compensation.

Learned counsel for appellant Insurance Company argued that the insurance policy in this case covered 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. He contends that Section 147 of the Motor Vehicles Act does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. He placed reliance on Dhanraj Vs. New India Assurance Co. Ltd. and Another, (2004) 3 ACC 300 : (2005) ACJ 1 : (2004) 4 CTC 716 : (2004) 8 JT 604 : (2004) 8 SCALE 229 : (2004) 8 SCC 553 : (2005) 1 UJ 176 ; Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, (1998) 1 ACC 193 : (1998) ACJ 121 : AIR 1997 SC 4228 : (1998) 91 CompCas 496 : (1997) 9 JT 767 : (1998) 118 PLR 195 : (1997) 7 SCALE 469 : (1998) 1 SCC 365 : (1997) 6 SCR 200 Supp and New India Assurance Co. Ltd. Vs. Meera Bai and Others, (2006) 9 SCC 174 in support of his contention that liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also.

I have perused Insurance Policy (exhibit 43) which is comprehensive. Schedule of premium reflected in the policy shows that the insured had paid premium for own damage and, inter-alia for paid driver. Owner of vehicle in this case was admittedly driving the auto-rickshaw. Looking to the insurance schedule contained in the policy in the present case, it cannot be said that the policy did not cover the risk of owner who was himself driving the vehicle.

Learned counsel for claimants has relied upon judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Kendra Devi and Others, AIR 2008 SC 490 : (2008) 1 CTC 430 : (2007) 13 JT 56 : (2008) 149 PLR 226 : (2007) 12 SCALE 718 : (2007) 14 SCC 626 . He contends that deceased Deorao was the only earning member in the family. From claim petition, it is revealed that widow of the deceased was aged about 30 years; his children were aged about 12 and 10 years respectively and parents of the deceased were aged about 65 years and 60 years respectively. Appellant Insurance Company has no where alleged that any of the members in the family of deceased was earning member. Hence, submission of learned counsel for claimants will have to be accepted. In New India Assurance v. Kendra Devi (supra) the Supreme Court declined to accept the contention of Insurance Company that the policy did not cover the risk to the owner of the vehicle. Paragraphs 8 and 9 of the said judgment read thus:-

"8. Perusal of the schedule of premium mentioned in the insurance policy shows that apart from liability to public risk, the owner has paid premium only for "paid driver and/or conductor". By contending that in the case on hand, the deceased being the owner-cum-driver, the Insurance Company is not liable to pay any compensation for death of the deceased who was owner-cum-driver and not paid driver as mentioned in the schedule of premium. In support of his contention, learned counsel for the appellant heavily relied on Section 147 of the Motor Vehicles Act, 1988 which speaks about the statutory liabilities and a decision of this Court in New India Assurance Co. Ltd. v. Meera Bai.

We have carefully considered the above provision as well as the decision of this Court. Taking note of the peculiar fact that the claimants have lost their only breadwinner, we are not inclined to interfere with the concurrent orders of the Tribunal as well as the High Court. Consequently, the appeal fails and the same is dismissed. No costs."

Taking into considering the schedule of premium of policy in question and ratio laid down by the Apex Court in Kendra Devi''s case (supra), there is no reason to interfere with the impugned judgment and award and the appeal must fail.

In the result, appeal fails and is dismissed. No costs. The amount of award be paid to the claimants after a period of six weeks from today.