1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.21 OF 2003 Shri Aleixo Manuel Fancisco Rodolf, D'Silva alias Aleixo Manuel D'Silva, alias Alex D'Silva, son of late Jose Santana D'Silva, aged 67 years, married, businessman, resident of House No.333, Godinho Waddo, Majorda, Salcete, Goa. .. Claimant/Appellant Versus United India Insurance Company Ltd. Insurer of motorcycle bearing registration Number GA-02-D-9728, Salgaokar Chambers, II floor, Margao, Goa. .. Respondents. Mr. S. Kakodkar, Advocate for the Appellant. Mr. A. R. S. Netravalkar, Advocate for the respondent. CORAM :- A. P. LAVANDE, J. DATE : 26 th August, 2010. ORAL JUDGMENT : By this appeal, the appellant takes exception to the judgment and order dated 16th September, 2002 passed by the Motor Accident Claims Tribunal, South Goa, Margao in Miscellaneous Claim Petition No.86/2002 dismissing the Claim Petition filed by the appellant/ claimant under Section 140 of the Motor Vehicles Act, 1988 ('the Act' for short). 2 2. The claimant filed an application under Section 140 of the Act claiming compensation of Rs.25,000/-. According to the claimant, he was proceeding on his motorcycle bearing No.GA-02-D-9728 towards his residence at Majorda. At Kesarval, his vehicle skidded off the road and he sustained injuries. According to the claimant, he sustained permanent disablement. 3. The respondent contested the application primarily on the ground that the claimant himself being the owner /insured of the vehicle, he was not covered under the policy issued, and Claims Tribunal had no jurisdiction to entertain the application. Before the Tribunal, the claimant also produced insurance policy in respect of the vehicle. The learned Tribunal held that the claimant/ appellant was not entitled to any compensation in terms of Section 140 of the Act. 4. Mr. Kakodkar,learned Counsel for the claimant submitted that the claimant is entitled for compensation in terms of Section 140 of the Act to the extent of Rs.25,000/- on a principle of no fault liability and even if the claimant 3 himself was rash and negligent in driving, the same by itself would not disentitle him from claiming compensation under Section 140 of the Act. He further submitted that in any event, in terms of the insurance policy clause IMT-71(d), the claimant was entitled to Rs.20,000/-( Rs. Twenty Thousand only). According to Mr. Kakodkar, the claimant has to be considered as a third party within the meaning of Section 147 and 149 of the Act and, therefore, the claimant could not have been denied compensation. The application under Section 140 of the Act seeking compensation has been wrongly dismissed by the learned Tribunal. In support of his submissions, Mr. Kakodkar relied upon the judgment of this Court in the case of United India Insurance Co.Ltd. Vs. Anubai Gopichand Thakare & Ors.; 2008(1)All MR 78. 5. Per contra, Mr. Netravalkar, learned Counsel for the respondent submitted that since the claimant himself was the owner /insured, he is not entitled to any compensation on the principle of no fault liability in terms of Section 140 of the Act and further that the claimant not being the third party, is not entitled to any compensation. He further submitted that even in terms of the policy relied upon by the claimant, the claimant is not entitled to any compensation. 4 In support of his submission, Mr. Netravalkar relied upon the Division Bench judgment of Karnataka High Court in the case of Oriental Insurance Co. Ltd. Vs. Sharda G. and others; 2010 ACJ 977. 6. I have considered the rival submissions and perused the record. 7. There is no dispute that the claimant himself is the owner / insured of the vehicle involved in the accident. Therefore, the moot question which arises for consideration is whether he is entitled to compensation in terms of Section 140 of the Act. Section 140 of the Act reads thus- 140 – Liability to pay compensation in certain cases on the principle of no fault – (1) Whether death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the 5 death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub- section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub- section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of 6 compensation payable under this section or under section 163A. 8. On plain reading of Section 140 of of the Act, it is evident that primary liability in case of an accident resulting in death or permanent disability of any person, the liability is of the owner/ owners of the vehicle involved in the accident and the question of rashness and negligence cannot be gone into while deciding the application under Section 140 of the Act. In the present case, in view of the admitted position that the claimant himself was the owner, it is unconceivable that in terms of Section 140 of the Act the claimant can claim compensation. The purpose of enacting Section 140 is to enable the third party from getting compensation irrespective of the proof of rashness and negligence on the part of the driver of the vehicle insured. Under Section 140, it is the primary liability of the owner of the vehicle involved in the accident to pay compensation to the legal representative of the deceased or the person suffering permanent disability. This being the position, it is unconceivable that the owner / insured, who himself meets with an accident and suffers permanent disability can claim compensation under Section 140 of the Act. Therefore, I am of the considered opinion that the learned Tribunal was 7 perfectly justified in rejecting the claim of the claimant under Section 140 of the Act. 9. Insofar as the reliance placed by Mr. Kakodkar on the insurance policy is concerned, the relevant clause reads thus - IMT-71- Personal Accident cover for drivers (other than paid Drivers) It is hereby understood and agreed that the company undertakes to pay compensation on the scale provided for bodily injury/death as herein after defined sustained by driver (other than paid driver) of the vehicle in direct connection with the use of Motor Vehicles or whilst mounting or dismounting of driving the vehicle and caused by violent accidental external and visible means which independently of any other cause shall within 12 calendar months of the occurrence of such injury result in : Scale of Compensation Amount (a) Death only Rs.20,000/- (b)Total irrecoverable loss of (i) Sight of both eyes or of the actual loss of physical separation 8 of the two entire hands or two entire feet or of one entire hand, and one entire foot, or of such loss of sight of one eye & loss of one entire foot or one entire hand (ii) Use of two hands or two feet or of one hand and one foot, or of such loss of sight of one eye and such loss of use of one hand or one foot Rs.20,000/- Rs.20,000/- (c) Total irrecoverable loss of : (i)The sight of one eye or of the actual loss by physical separation of the entire hand or one entire foot (ii) Use of hand or a foot without physical separation For the purpose of clause (b) & clause (c) above “physical separation” of hand or foot means separation at or above the wrist and/or at or above the ankle respectively. Rs.10,000/- Rs.10,000/- (d) – Permanent total disablement from injuries (other than named above) which shall be direct consequences thereof permanently, totally, absolutely disable the insured from engaging in an employment or occupation of any description. Rs.20,000/- 9 10. A bare reading of clause (d) discloses that the claimant in this case is entitled to get Rs.20,000/- in case he suffers permanent total disablement from injuries which shall be direct consequences thereof, which permanently, totally, absolutely disable the insured from engaging in any employment or occupation of any description. The liability of the Insurance Company arises only when the claimant satisfies the condition in clause (d). In the present case, the application has been filed solely on the ground that he has suffered permanent disability. Therefore, clause (d) of IMT- 71 of the Insurance Policy would not advance the case of the claimant. 11. I do not deem it necessary to refer the authorities cited by both sides since they are not relevant having regard to the facts of the present case. 12. In the result, therefore, I find no merit in the appeal. Hence, the appeal is dismissed with no order as to costs. A. P. LAVANDE, J. SMA