( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.321 OF 2010 Bajaj Allianz General Insurance Co.Ltd. Through its Branch Manager, 2nd Floor, Adalat Road, Aurangabad. .. Appellant Versus Chandrakala w/o Prabhakar Masure, Age: 46 years, Occ: Household, R/o. Balamtakli, Tq. Shevgaon, District Ahmednagar & Ors. .. Respondents WITH CIVIL APPLICATION NO.4847 OF 2010 ... Mr. P.C. Mayure, Advocate with Mr. S.G. Chapalgaonkar, Advocate for the appellant. Mr. N.B. Narawade, Advocate for respondent Nos.1 to 3. ... CORAM : P.R. BORKAR,J. DATED : 03.05.2010 P.C. :- This appeal is preferred by the Insurance Company being aggrieved by the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Ahmednagar in M.A.C.P. No.425/2008 decided on 15-07-2009. ( 2 ) 2. Briefly stated facts giving rise to this appeal are as under. Deceased Prabhakar Masure was travelling on motor cycle bearing Registration No. MH-16-Z-2312 on 20-03-2008 at about 4-45 p.m. on Shevgaon to Georai road. When he was near village Babhulgaon, a Tractor bearing Registration No.MH-23- B-6594 came from opposite direction and gave dash to the motor cycle. As a result, Prabhakar sustained injuries and he succumbed to the injuries. The claim petition under Section 140 of the Motor Vehicles Act is only filed. There is no claim petition under Section 166 of the Motor Vehicles Act. The owner, driver, insurer of the Tractor are not made parties. The only respondents are the owner and the insurer of the motor cycle. 3. In this appeal, the learned Member of the Tribunal awarded compensation of Rs.50,000/- under section 140 of the Motor Vehicles Act, alongwith interest @ 7.5% per annum. The challenge to this award is on the ground that risk of Prabhakar was not covered by the Insurance policy. With the consent of the parties, the appeal is taken up for final ( 3 ) hearing at admission stage. 4. Copy of the certificate cum policy schedule is produced on record. It is taken on record and marked "X" for identification. Learned Advocate of respondent Nos. 1 to 3 stated that the insurance covers risk for owner driver for Rs.1,00,000/- on additional premium of Rs.50/- was paid. On the other hand, learned Advocate of the appellant Insurance Company stated that it is only risk of registered owner which is covered if he was driving the vehicle and he relied upon Clause-1 of Section 3, which reads as under. "1) This cover is subject to (1) the owner-driver is the registered owner of the vehicle insured herein; (b) The owner-driver is the insured named in this policy, (c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule of the Central Motor Vehicles Rule, 1989, at the time of accident." 5. Both side cited certain authorities. Case of Dhanraj vs.New India Assurance Co. Ltd. and another reported in A.I.R. 2004 S.C. 4767(1) is cited for proposition that ( 4 ) comprehensive policy covers damage to vehicle and not for injury to person of owner. It is held that insured cannot claim compensation from insurer in absence of personal accident insurance coverage. Second case cited is Yellwwa and others vs. National Insurance Co. Ltd and another reported in A.I.R. 2007 S.C. 2582(1). In that case, it is held that a claims Tribunal must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award. When objections are raised by the insurance company in regard to its liability, the Tribunal is required to render a decision upon the issue, which would attain finality and thus, the same would be an award within the meaning of Section 173 of the Act. New India Assurance Company Ltd. vs. Sadanand Mukhi and others reported in A.I.R. 2009 S.C. 1788 is cited for proposition that where insurance policy is in respect of motor cycle taken out by its owner, the son of insured, while driving motor cycle, meeting with accident resulting in his death, in such case, insurer would not be liable to pay compensation. Deceased does not come within purview of term "person" within Section 147 of the Motor Vehicles Act. So, it is argued that deceased Prabhakar is ( 5 ) not covered in the present case as he was not owner - driver of the vehicle. Another case cited is Ningamma and another vs. United India Insurance Co. Ltd. reported in A.I.R. 2009 S.C. 3056. In that case, it is held that if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A. In the case before Their Lordships, deceased was not the owner of the vehicle in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the motorbike although he was authorised to drive the vehicle by its owner and therefore, he would step into the shoes of the owner of the motorbike. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A. Advocate of the respondents wanted to take advantage of the latter portion of the above said ruling and stated that if the legal representatives of the deceased were to enter into shoes of the owner of the motorcycle, then he may also entitled to be covered by the policy. ( 6 ) 6. Another case cited is Ajay Kumar Singh vs. Pata Dei and others reported in A.I.R. 1982 Orissa 51. In that case, there was third party insurance policy. There was no condition in bond to permit vehicle to be driven only by named driver. There was no breach of condition when vehicle was driven by any licensed driver. The case of M/s. United India Fire and General Insurance Co. Bangalore vs. Smt. Azeerunnisa w/o late Burhan Khan, Bangalore and others reported in A.I.R. Karnataka 187 is relied upon. It was a case under the Motor Vehicles Act, 1939. It was held therein that so far as the personal injury in a motor accident under Commercial Comprehensive Policy is concerned, there should be limit of liability. It may be noted that this case comes under old law as it stood then. Next case is Raphik Mehbub Pakhali vs. Anantkumar Pravinkumar Jalal and another reported in 1996(2) Bom.C.R. 541. In that case, a Scooter driver, who suffered disablement in collision with truck, was denied compensation on the ground that he himself was negligent. In that case, it is held that for ascertaining the liability under Section 140, the Court has to consider whether (i) the accident has arisen out of the use of the Motor Vehicle (ii) ( 7 ) the said accident has resulted in a permanent disablement of the person who is making the claim or the death of a person whose legal representatives are making the claim and (iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident. Once these three factors are established prima facie, in Court's view, the claimant is entitled to succeed in an application under section 140 of the Motor Vehicles Act. 7. Learned Advocate of the appellant has also placed on record the India Motor Tariff 2002 and refers to IMT.15, which deals the personal accident cover to the insured or any named person other than paid driver or cleaner. It is argued before this Court that deceased Prabhakar was not named as the owner - driver of the vehicle and as such, his risk is not covered. In the certificate cum policy schedule marked as "X" for identification, placed on record by the Insurance Company, "driver" is defined as follows. "Driver : Any person including the insured Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an ( 8 ) effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989." 8. In this case, if the owner alone to be covered as driver, in that case, there was no necessity of placing definition of "driver" on the first page of the policy, which amongst other things also lay down past claim reference by the insurer. Considering that no particular person is named as a driver in the policy and considering the definition of "driver", it can be held that risk so far as deceased Prabhakar is concerned, it covered to the extent of Rs. 1,00,000/-. In the circumstances, there is no merit in the appeal and the same is dismissed. The appeal is accordingly disposed of. 9. The amount deposited in this Court, be sent to the Tribunal. 10. In view of the dismissal of the appeal, Civil Application No.4847 of 2010 does not survive, and hence, is disposed of accordingly. [P.R. BORKAR,J.] sut/MAY10/fa321.10