1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 343 OF 2003 1. Smt. Sarita Ranganath Haldankar widow of Ranganath Jaganath Haldankar alias Ranganath Jaganath Naik Haldankar, aged 45 years, housewife, Indian National, residing at M-II, Housing Board Colony, Bordem, Bicholim, Goa. 2. Miss Sushma Ranganath Haldankar, daughter of late Ranganath Jaganath Haldankar, aged 25 years, unmarried, Indian National, residing at M-II, Housing Board Colony, Bordem, Bicholim, Goa. 3. Master Sushant Ranganath Haldankar, son of late Ranganath Jaganath Haldankar, aged 23 years, student, Indian National, residing at M-II, Housing Board Colony, Bordem, Bicholim, Taluka, Goa. 4. Miss Sujata Ranganath Haldankar, daughter of late Ranganath Jaganath Haldankar, aged 20 years, student, Indian National, residing at M-II, Housing Board Colony, Bordem, Bicholim, Taluka, Goa. .. Appellants Versus 1. Smt. Rashila Sadanand Govenkar, wife of Sadanand Govenkar, major in age, owner, Indian National residing at H.No.115, Bordem, Bicholim Taluka, Goa. 2. M/s. National Insurance Co. Ltd., having its office at 1st Floor, Town Centre, Bicholim-Goa. .. Respondents. 2 Mr. A. Kansar, Advocate for the Appellants. Respondent no.1 absent, though served. Mr. E. Afonso, Advocate for the respondent no.2. CORAM :- A. P. LAVANDE, J. DATE : 18 th October, 2010. ORAL JUDGMENT : By this appeal, the appellants take exception to the judgment and award dated 4th September, 2003 passed by Motor Accident Claims Tribunal, Mapusa in claim petition No.48/2000. 2. Briefly, the facts leading to filing of the present appeal are as under : The appellants ('the claimants' for short) are the legal representatives of Ranganath Haldankar, who was driver of the Maruti Van bearing no.GA-01-J-0571, owned by respondent no.1 and insured with respondent no.2. He was employed by respondent no.1 on monthly salary of Rs. 8,000/-. On 27th June, 2000, he was proceeding from Mapusa- Duler to Bicholim in the said vehicle. According to the claimants, on reaching near village Mulgaon, deceased 3 Ranganath saw an electric wire hanging above the road. In order to avoid the same, he took the Van on the right side on account of which the Van dashed against a mango tree. As a result of the accident, Ranganath sustained severe injuries and died instantaneously. The appellants filed Claim Petition no. 48/2000 against the respondents claiming compensation of Rs. 4 Lacs. The claim petition was contested by the respondents. The Tribunal framed the following issues : “(i) Whether the applicants prove that they are entitled for compensation of Rs. 4,00,000/-? (ii) Whether the respondent no.2 proves that it is not liable to pay any compensation since no death of third party arose out of the use of the vehicle in public place ?” 3. The claimants examined two witnesses. Respondent no.2 examined their Administrative Officer and produced policy of insurance in favour of respondent no.1. The Tribunal held that the driver was not covered under the policy and the driver himself was rash and negligent in driving the vehicle. The Tribunal held that he was not a third party as per the policy of insurance and as such the claim petition against respondent no.2 was not maintainable. 4 4. The Tribunal further held that the claim petition was not maintainable and consequently, dismissed the claim petition. 5. Mr. Kansar, learned Counsel for the claimants submitted that the impugned judgment and award is patently unsustainable in law. He further submitted that in any case, respondent no.1 being the owner of the vehicle is liable to pay compensation to the claimants. He, therefore, submitted that the impugned judgment and award be set aside. 6. None appeared on behalf of respondent no.1 though she has been served. 7. Mr. Afonso, learned Counsel for respondent no.2 placed reliance upon the judgment of the Apex Court in the case of Oriental Insurance Company Ltd. Vs. Meena Variyal and others; (2007)5 SCC 428 and submitted that the driver was not covered under the policy of insurance since he was not a third party and, therefore, the Tribunal was justified in dismissing the claim petition. 5 8. I have considered the rival submissions and perused the record. 9. The first question which arises for consideration is whether the claim petition filed against the respondents was maintainable. Bare perusal of the claim petition discloses that there is no averment and there could not be an averment that the driver of the vehicle was rash and negligent in driving the vehicle. According to the claimants themselves, Ranganath- the deceased was not rash and negligent in driving the vehicle and the accident had occurred since he tried to avert a hanging electric wire and in that process, he hit the mango tree on the right side. 10. In claim petition filed under Section 166 of the Motor Vehicles Act, 1988, it is necessary for the claimant to aver and prove that the driver of the vehicle was rash and negligent in driving the offending vehicle. Way back in the year 1977, in the case of Minu D. Mehta Vs. B. R. Nayan; (1977) 2 SCC 441, the Apex Court unsettled the judgment of the Bombay High Court and held that in order to claim compensation pursuant to the application under Section 110A of the Motor Vehicles Act, 1939, the claimant had to 6 prove rashness and negligence on the part of the driver. The Apex Court further held that the liability of the owner arises out of failure to discharge the duty cast on him by law and the right to receive compensation can only be against the person, who is bound to compensate due to the failure to perform a legal obligation. Although the judgment was delivered in the context of the provisions of Motor Vehicles Act, 1939, the ratio would be equally applicable to the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. 11. In the event the deceased Ranganath was not negligent in driving the vehicle obviously respondent no.1, who is the owner of the vehicle, would not be liable. If the deceased Ranganath was rash and negligent in driving the vehicle, the necessary sequitur would be that the claim petition would not be maintainable at the instance of the appellants. Therefore, looking at the matter from any angle, the claim petition filed by the claimants was not maintainable. Since the owner herself was not liable to pay any compensation to the claimant, the question of Insurance Company indemnifying the owner does not arise. Mr. Afonso is justified in placing reliance upon the judgment in the case 7 of Meena Variyal (supra) in which the Apex Court, considering the scope of Sections 147 and 149 of the Motor Vehicles Act, 1988, held that the insurance policy in terms of Section 147 of the Act, is not intended to cover persons other than a third party. In the present case, by no stretch of imagination, the deceased Ranganath could be termed as a third party. Therefore, respondent no.2 was also not liable to pay any compensation to the claimants. In my opinion, the claimants are not entitled to claim compensation under Section 166 of the Motor Vehicles Act, 1988. 12. In view of the above discussion, I find no merit in the appeal. The appeal is, therefore, dismissed. No order as to costs. A. P. LAVANDE, J. SMA