IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No._588 of 2003. Judgment reserved on: 5.6.2008 Date of decision: 16.6.2008 New India Assurance Company ….Appellant Vs. Kanta Devi and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Mr. Vikas Bhardwaj, Advocate. Kuldip Singh, Judge. The insurer has come in appeal against the award dated 19.9.2003 passed by learned Motor Accident Tribunal (II), Kangra at Dharamshala, in MAC Petition No.82-P/01, awarding Rs.50,000/- interim compensation to respondents-claimants under no fault liability. 2. The facts in brief are that respondents-claimants filed petition under Section 166 of the Motor Accident Claims Tribunal, 1988 (for short) Act) against New India Assurance Company, claiming Rs.10,00,000/- compensation, on account of death of subash Kumar, who was driving a taxi bearing registration No. HP-02-8191 on 8.10.2001 at about 9.10 PM near village Barer and met with an Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… accident while he was returning home after dropping passengers, he died on the spot. It has been alleged that the respondents-claimants are the wife, son and mother of the deceased and they were dependant on the deceased who was 28 years of age at the time of death and was earning Rs.12,000/- per month. 3. The appellant-insurer contested the petition and took several preliminary objections including maintainability of the petition. It was pleaded that tort feasor cannot claim compensation for injuries sustained by himself. The insurer denied the claim of the respondents-claimants. The details of the defence of the insurer are not necessary in view of the short point involved in the present appeal. In the claim petition respondents-claimants filed application under Section 140 of the Act for grant of interim compensation of Rs.50,000/- under no fault liability on account of death of Subash Kumar. This application was also contested by appellant-insurer by taking preliminary objections of maintainability. The insurer had taken the defence that deceased driver-cum-owner of the vehicle was not insured qua personal injuries or death under the terms of the policy, therefore, respondents-claimants who are legal heirs of the deceased are not entitled to interim compensation. 4. The learned Tribunal allowed Rs.50,000/- interim compensation under no fault liability to the respondents-claimants subject to the right of the insurer. The learned Tribunal also directed the insurer to indemnify the amount of interim compensation and to deposit the interim compensation within 45 days, failing which the …3… respondents-claimants would be entitled to interest at the rate of 9% per annum. The interim compensation award dated 19.9.2003 has been assailed by the appellant-insurer. 5. I have heard Mr. K.D. Sood, learned counsel for the appellant-insurer and Mr. Vikas Bhardwaj, learned counsel for the respondents-claimants and gone through the record. On behalf of the appellant, it has been submitted that application under Section 140 of the Act filed by respondents-claimants was not maintainable in as much as deceased was the owner-cum-driver of the vehicle and he himself was driving the vehicle at the time of accident in which he sustained injuries and later on died. The respondents-claimants being the legal heirs of deceased are not entitled to any compensation either under Section 166 or Section 140 of the Act. Mr. Vikas Bhardwaj, learned counsel for the respondents-claimants has supported the impugned award. 6. In Oriental Insurance Co. Ltd. vs. Jhuma Saha ( SMT) and others (2007) 9 SCC 263, the deceased was the owner of the vehicle, he himself was driving the vehicle and the accident did not involve any other vehicle. On those facts the Apex Court has held that claim petition against the insurer is not maintainable. The liability of the insurer is to the extent of indemnification of insured and when insured cannot be fastened with any liability under the Act, the question of the insurer being liable to indemnify the insured does not arise. In National Insurance Co. vs. Kalyan Singh and others, 2007 ACJ 1932, the Tribunal had allowed application under Section …4… 140 of the Act for interim compensation on 2.11.1998 but vide final award dated 27.8.1999, it was held that the insurance company is not liable to indemnify the insured. The legal representatives of the deceased filed execution proceedings for recovery of the amount of interim compensation as per order dated 2.11.1998. The petitioner raised an objection regarding recovery of the amount from the insurance company in view of the final award dated 27.8.1999. The Tribunal rejected the objections vide order dated 30.3.2000 which was challenged by way of revision petition. On those facts it was held that interim order has merged with the final order. The impugned order is prima facie illegal and contrary to the final award passed on 27.8.1999. 7. In the present case also the petition under Section 166 of the Act of the respondents-claimants was dismissed by the learned Tribunal on 5.5.2004. It has been held in the final award that legal heirs of deceased Subash Kumar who was owner-cum-driver of the taxi involved in the accident are not entitled to any compensation from the insurance company. The respondents-claimants are the legal heirs of deceased who himself was owner-cum-driver of the vehicle and was himself driving the vehicle involved in the accident, therefore, respondents-claimants are not entitled to any compensation under Section 140 of the Act also. The learned Tribunal has not properly appreciated the legal position at the time of awarding interim compensation to respondents-claimants. Therefore, impugned award is not sustainable. …5… 8. No other point was urged. 9. The result of the above discussion, the appeal is allowed. The award dated 19.9.2003 passed by learned Motor Accident Tribunal (II), Kangra at Dharamshala in MAC Petition No.82-P/01 is set aside with no order as to costs. ( Kuldip Singh) Judge June 16, 2008 (sks)