IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.480 of 2009 Branch Manger United India Insurance Co. Ltd. Darbhanga Branch, Darbhanga (Insurer of Hero Honda Splendor +(Plus) No. BR -7E-5651, Engine No. 31644, Chasis No. 34743. (Opposite Party No.2) ………………………Appellant. Versus 1. Ansuiya Devi, wife of Late Radhey Shyam Thakur, resident of Village- Mankauli, P.S. Singhwara, District- Darbhanga. (Claimant) ……………………………..Respondent Ist Set. 2. Radhey Shyam Thakur (Deceased) (Owner of Hero Honda, Splendor+ plus Motor Cycle No. BR-7E-5651) (Opposite Party No.1)………………..Respondent 2nd Set. For the appellant :- Mr. Seema, Advocate. Mr. Prakash Kumar, Advocate. For the respondents :- Mr. Satyanand Shukla, Advocate. ----------- 11. 10.01. 2011. Heard. This Miscellaneous Appeal is directed against the order dated 01. 04. 2009, passed by the District Judge-cum-Claims Tribunal, Darbhanga, in Claim Case No. 25 of 2008, by which allowing the petition for ad- interim compensation under Section 140 to the extent of Rs. 50,000/- to the claimant to be paid by the Insurance Company regarding death of deceased who was owner of the motorcycle. 2. The case of the claimant that the deceased was going on his splender motorcycle bearing Registration No. BR7E-5651, being driven by his son Rakesh Kumar, who was hit by a unknown truck by which both Rakesh Kumar and owner who was pillion 2 rider got injured and succumbed to injury. The motorcycle was under valid insurance policy. 3. The claimant is the wife of the deceased owner. F.I.R. was lodged with respect to occurrence which was Simri P.S. Case No. 86/07. Under the claim petition under Section 166 a petition under Section 140 of Motor Vehicle Act for interim compensation was filed. 4. The Tribunal on considering the fact that the said motorcycle was insured passed order directing the Insurance Company to pay interim compensation as no fault of liability. 5. The Insurance Company has preferred this appeal against the order of interim compensation on the ground that Insurance Company has taken special defence that since the deceased was insured and owner and hence, he can not be a third party and hence not liable for compensation as third party claim. 6. However, a counter affidavit has been filed by the claimant in which it has been asserted that it is true that the deceased was a owner of the motorcycle, but the said motorcycle was insured covering the risk of third party and further it also cover the risk of the deceased owner separately and separate premium was paid for the risk of the life of the owner and has also annexed a copy of the insurance policy which has been 3 annexed as Annexure-A to the counter affidavit. It has been submitted that since the policy which was third party also cover the risk of owner as separate premium paid to cover the risk of owner and hence Insurance Company is liability to pay compensation for the death of the deceased. 7. Learned counsel for the appellant (Insurance Company) contended that admitted case of the party that motorcycle was driven by one Rakesh Kumar, son of deceased Radhe Shyam Thakur, who was owner of the motorcycle. The motorcycle was insured. Section 147 of the Motor Vehicle Act provides covering of the risk of third party. However, since the motorcycle was driven by Rakesh Kumar, son of the deceased owner and owner is the pillion rider and hence neither the son nor the deceased of motorcycle is a third party. Hence, owner and his son are not liable for compensation under Section 140 of the Motor Vehicle Act. It has further been contended that if assume that the policy covers the limited risk of owner on the ground that extra premium has been paid to cover the risk of the owner even then it is not a statutory liability, but a contractual liability and is not covered under Section 147 of Motor Vehicle Act by the third party claim and hence the Tribunal is not a forum for the claim even if 4 extra premium has been paid and hence the Tribunal is not a forum for claim other than the third party liability and has placed reliance upon decision reported in 2009 (2) SCC 417, 2004 (8) SCC 553 and 1998 (1) SCC 365. 8. Learned counsel for the respondent- claimant however, contended that appellant insurer admits that the vehicle was insured and not challenge the insurance policy. It is also admitted that insurance policy as a third party. However, the insurance policy specifically mentioned that it covers the risk of owner and further mentioned about extra premium paid to cover the risk of owner and the policy cover the risk of the injury causing the death of the owner for which premium is paid. It is further contended that the policy is statutory policy with covering the risk of owner, the term of policy have to be considered to determine the liability of the insurer and have to be treated as third party and hence, contended that statutory policy in terms of under Section 147 of the Act covers liability incurred by the insurance company in respect of the death or bodily injury to the insured as third party when the insurance policy covering the risk of third party also covers the risk of owner for which extra premium is paid. Hence on respective submissions the question for consideration whether the claimant is 5 entitle to compensation by Tribunal. 9. However, admitted fact that the claimants are heirs of the owner and have claimed with regard to the death of the owner while travelling on motorcycle hit by unknown truck and ran away which could not be located and the said motorcycle was insured with respect to third party as well covering the risk of owner. It has been asserted that accident cover the period and the policy Ext. A/5 mentions that insurance policy is a third party and also mentioned that extra premium of Rs. 50/- has been paid to cover the risk of the owner to the extent of Rs. 1,00,000/- and have established this factual matrix I proceed to consider the point raised. 10. The argument has been advanced on behalf of Insurance Company that ,though, the policy is statutory third party also covers the risk of owner but this covering the risk of the owner can only be taken as contractual liability and hence if it is contractual liability, it can not be claimed before the Tribunal as Tribunal can only grant relief for a third party risk and claimant is not entitled to compensation as claimant was not a third party, hence Motor Accident Claim Tribunal is not a forum to grant relief to the claimant with regard to contractual liability on the basis of extra premium having been paid. Reliance has been placed 6 upon decision reported in 2004 (8) SCC 553 and 2009 (2)SCC 417. 11. 2009 (2)SCC 417 son or insurer met with an accident and died while driving motorcycle and claim resisted on ground that relationship of owner and deceased is of father and son and held that deceased was not a third party himself caused the accident and further since policy did not cover the risk of owner or driver and for covering the risk of owner and driver, extra premium required to be paid, since owner only fulfill statutory obligation as contained under Section 147 of the Motor Vehicle Act and hence policy did not cover the risk of owner and driver when no extra premium paid 12. Hence the decision relied upon is for a proposition that if the third party statutory policy does not cover the risk of owner as no extra premium is paid then the heirs of owner are not liable to claim compensation for the death of owner as owner is not a third party. 13. It is relevant to quote para 13 of the judgment "additional premium was not paid in respect of the entire risk of death or bodily injury on the owner of the vehicle and if that so Section 147 (1) B of the Motor Vehicle Act is not uncertain term cover the risk of 7 the third party only would be attracted in the present case". 14. The decision relied upon 2009 (2) SCC 187 held that owner is not a third party hence is not entitle to compensation if the policy is act policy i.e. statutory policy but observed that owner is entitled to compensation when extra premium is paid to cover the risk of owner. Hence, decision relied upon is not for ratio that even if the extra premium has been made by owner covering the risk of owner, the Tribunal is devoid for its jurisdiction to grant relief to the owner. 15. However the owner is entitled to compensation if the extra premium has been paid to cover the risk of the owner and in that case question for consideration whether comprehensive policy would cover the risk of the injury to the owner of the vehicle and it was held Section 147 does not require any Insurance Company to assume risk of the death or bodily injured to the owner of the vehicle and it was held that whether the insurer of the vehicle has no liability to be a third party. But in view of observation made in para 10 of the decision reported in 2009 (2) SCC 187, it has been observed that claim of the owner could have been maintainable even if policy in third party covers the risk for injury to owner i.e. insured. 8 16. Learned counsel for the appellant has further relied upon reported in 1998(1) SCC 365. However, under the facts and circumstances the accident occurred at 2.20 P.M. on 10.12.1991 and the insurance policy covers notes obtained by the insurer at 2.55 P.M. and the owner of the motor vehicle and in such circumstances held that insurer was not liable, but the vehicle. 17. Hence the decision relied upon the learned counsel for the appellant is for proposition that if the policy is only act policy it cover the risk of third party only and in such policy the risk of owner is not covered. However, if the policy covering the risk of third party also covered the risk of owner accepting extra premium for covering the risk of owner, the owner is entitled to compensation as third policy claim under Section 147 (1) B. However, under the facts and circumstances of the case at hand the policy is not an act policy but also cover the risk of owner to the extent of Rs. 1,00,000/- and extra premium has been paid for covering the risk of owner. 18. However, learned counsel for the respondent has relied upon decision reported in 2008 (3) TAC page 483 in which the question for consideration was whether Insurance Company is 9 liable for compensation in respect of the claim made by the owner or the representative of the owner as third party claim. Taking into consideration Dhanraj V. New India Assurance Company Limited 2004 (8) SCC 553, 2007 A.C.J. 821 (New India Assurance Company Limited V. Meera Bai and others, 2007 A.C.J. 818 (Oriental Insurance Company Limited V. Jhuma Saha and 1998 A.C.J. 531 held that these cases the policy was act policy and in the act policy the risk of owner and representative or pillion rider is not covered (Amrit Lal Sood and another V. Vaushalya Devi Thapar and others) However it is open to the Insurance Company and insurer to the extent coverage of the Act or statutory policy to bodily injury or death of the insured or even driver or pillion rider. It has further been held that policy is not merely a statutory policy, term of the policy cover the risk of the owner and their legal representative and the claim by kith and kin of the insured regarding death have to be treated as third party cover under Section 147 of the Motor Vehicle Act. covers liability incurred by the insured in respect of death or bodily injured to any other person including the owner. Hence the decision relied upon by claimant respondent held that if policy covered the risk of owner to the extent treated as third party cover. 10 19. Hence coming to the facts and circumstances of the case, since the policy is admittedly covering the risk of third party also covers the risk of owner of the vehicle and hence cover under Section 147 1 (b) 1 and since it is a beneficial legislation for benefit of the victims and members of their family therefore such provisions are required to be liberally construed and hence I find and hold that since the policy covers the risk of third party as well as also cover the risk of the owner, hence covered under Section 147 (1) b(1) and the claimant are covered under the third party claims and the Tribunal has jurisdiction to grant relief. 20. Hence I do not find any merit in this appeal and the appeal is hereby dismissed. m.p. ( Gopal Prasad, J.)