HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.100 of 2007 Dated 6-8-2010 Between: Kondamuri Venkateswara Rao. …Petitioner. And: Pakalapati Gangabhavani. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.100 of 2007 JUDGMENT: This appeal is filed by the Insurance Company against the award of Motor Accident Claims Tribunal, Kadapa dated 24-8-2006 in M.V.O.P.No.205 of 2003. The present facts are that the 1st respondent herein is the claimant who is the son of 2nd respondent herein. Vehicle in question namely Motor cycle bearing No.AP04 E 8535 belongs to the 2nd respondent and was insured with the appellant. The said vehicle was insured with the appellant under ‘Act’ policy. The said vehicle while being driven by the 1st respondent- claimant on 6-8-2002 met with an accident. It is alleged in the claim petition that when the 1st respondent-claimant along with his friend were returning home after visiting the temple, near the Central Jail, on the metal road, the 1st respondent-claimant lost control and both of them fell down resulting in injuries to both of them. The 1st respondent-claimant sustained injuries on his left collar bone and his left clavicle was fractured and he took medical treatment from Dr. B.Someswara Reddy and incurred expenditure of about Rs.20,000/-. Hence, the 1st respondent-claimant filed the petition seeking compensation of Rs.1,50,000/-. The appellant-Insurance Company contended that there is rash and negligent driving on the part of the 1st respondent himself and the claim petition is not maintainable as there is no documentary evidence of medical expenses incurred. The Tribunal below on issue No.1 held that as per the evidence of P.W.1-claimant read with Ex.A.1 F.I.R. registered in Cr.No.144 of 2002 of Chinnachowk Police Station and Ex.A.3-Charge sheet would show that the accident took place on account of rash and negligent driving of the claimant himself in riding the vehicle. However, the 2nd respondent herein being the owner of the vehicle and the appellant-Insurance Company being insurer were held liable to pay compensation. On issue No.2, the Tribunal held that the Disability Certificate Ex.A.4 showing that the 1st respondent-claimant has suffered permanent disability of 35% cannot be taken into consideration as the 1st respondent-claimant is a gratuitous person and that the Disability Certificate must be issued by a team of medical experts. However, the Tribunal granted Rs.50,000/- towards compensation and the liability was jointly and severally placed on the 2nd respondent herein and the appellant herein. The said order is questioned by the appellant- Insurance Company in this appeal. Heard both sides. Learned Counsel for the claimant raised two specific contentions namely (1) that the policy of the vehicle in question being ‘act policy’ covered only 3rd risk. Neither the Insurer nor the son of owner can make any claim under the aforesaid policy. He has placed reliance upon an unreported decision of this Court in JAYAVARAPU RAJAMMA AND OTHERS v. JAYAVARAPU LAXMINARAYANA (C.M.A.No.3209 OF 2001) DATED 21-6-2007 as well as in another judgment of this Court in UNITED INDIA INSURANCE CO.LTD, ELURU v. MUPPALA ANASURYANVATHI AND OTHERS ([1]). He also relied upon two decisions of the Supreme Court in NEW INDIA ASSURANCE CO. LTD., v. MEERA BAI ([2]) and ORIENTAL INSURANCE CO., LTD., v. JHUMA SAHA ([3]) for the proposition that in case of ‘act policy’, the owner or his representative who is himself driving the vehicle is not covered under the policy. 2nd contention raised is that the finding on issue No.1 as to the negligence by the Tribunal below is on the 1st respondent-claimant himself and when the claim for negligence is held against the claimant, the owner himself cannot seek compensation from the Insurance company when he himself is at fault. Learned counsel for the respondents on the contrary contends that the 1st respondent claimant is entitled to compensation as the vehicle was covered against all the 3rd party risks and other than the owner, any person is a third party. The learned counsel also states that the injuries caused on account of the accident were duly established by examining P.W.2 the Doctor who treated the 1st respondent-claimant and gave deposition that the 1st respondent- claimant suffered from permanent disability of 35%. I have considered the above contentions. So far as the 1st issue is concerned, the evidence of P.W.1 read with F.I.R. and charge sheet clearly shows that the accident is caused on account of negligent driving of the 1st respondent -claimant himself. The finding of the Tribunal below on that aspect cannot be controverted in view of the evidence on record. Since the accident is caused on account of own negligence on the part of the driver, the indemnity under Insurance policy is not attracted. Even otherwise, as also decisions referred to above, under an ‘act policy’, only 3rd party risks are covered, unless the owner pays separate premium for risk of the driver or the employee as the case may be. Since the insurance is a matter of contract of indemnity, the said liability cannot be imposed on the Insurance Company. However, in view of the first issue referred to above, it would not be necessary to go into the 2nd aspect. This M.A.C.M.A. is accordingly allowed. There shall be no order as to costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 6-8-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.100 of 2007 Dated 6-8-2010 [1] 2007 (1) ALD 798 [2] 2006-SCC-9-174 [3] 2007-TLPRE-0-69, 2007 (TLS) 43527