1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1231/2006 New India Insurance Co. Ltd. Through it’s Divisional Manager, Adalat Road, Aurangabad. ...Appellant. Versus 1. Kailas s/o Suklal Badgujar, Age : 32 years, Occupation: Service, R/o Patelwadi, Nandurbar, Tq & Dist. Nandurbar. 2. Sunil s/o Zendu Mali Age : Major, Occupation : Business, R/o Plot no. 26, Gopalnagar, Dhule road, Nandurbar, Dist. Nandurbar. ..Respondents. Shri S.G. Chapalgaonkar, Advocate for appellant. Shri R.R. Mantri,, Advocate for respondents. CORAM : K.U. CHANDIWAL, J. Date : 02 nd February, 2010. ORAL JUDGMENT :- 1 Heard. 2 Rule returnable forthwith. Record and proceeding verified by the 2 respective counsel. 3 The grant of compensation in terms of Section 163-A of the Motor Vehicles Act, 1988 to the claimant Kailas while he was driving motor Car bearing registration No. MH-39/306 having lost control over the Car and suffered an accident, is assailed by the appellant / Insurance Company. 4 It is canvassed by the appellant that the vehicle being driven by the claimant himself, he could not assert and stake anything against owner of the vehicle and consequently, against the Insurance Company. The disability to which the claimant stake claim is not legally proved. The award of compensation is excessive. The learned judge has lost sight of the legal position as enunciated in the matter of Ningamma and another versus United India Insurance Co. Ltd. 2009 AIR SCW 4916 and also to the judgment of Division Bench of this Court in the matter of Traders Pvt. Ltd. Ahemadabad and another versus Sunanda wd/o Krishna Machivale and others 2009(1) Mh. L. J. 898. 5 As against these submissions, the counsel for the claimant (respondent) contemplates that the third party who are affected are covered 3 under the Insurance policy. The nature of the policy and provisions of law are beneficial legislation and will have to be construed in proper tone. The owner is not left orphan. The policy is in terms of Section 147 of the Motor Vehicles Act. The Court is misguided by the appellant while arguing the matter. The disability certificate established the injuries suffered by the claimants. 6 The claimant while driving the vehicle belonging to his friend bearing vehicle No. MH-39/306 in the night of 31-03-2003 had a accident, is not in controversy. The claimant asserts, he was referred to Dr. Saindane where he was admitted for three days and has suffered medical expenses for medical treatment. His income to be annually Rs.40,000/- and since there was 25% of disability, he is unable to carry his pursuits with the same zeal, velor and velocity, consequently, he is unable to lift any weight and hence, claimed amount of Rs. 2,00,000/- from the respondent in the claim petition (appellant herein). 7 The accident to Car took place, while claimant was driving, right side tyre was burst. It is so stated in F.I.R. lodged by his friend indicating heavy damage to the Car including injury suffered by the present claimant 4 Kailash. 8 The case revolves to the disability which the claimant asserts to be 25%. The Law mandate, any disability on account of accident needs to be proved by getting proper certification from competent officer like Civil Surgeon or Medical Board. The certificate produced by the claimant is from Dr. Saindane which indicates that, for one day the claimant was admitted to the hospital. The certificate does not indicate, there was any permanent disability barring few bruises and a injury to the claimant. Though the claimant allegedly got himself examined from the Civil Surgeon, certification caused from Civil Surgeon blast contention of the claimant to have been personally examined. The certificate by the competent authority issued on 21 st January, 2004 indicates that the claimant informed Medical Officer that he has suffered an accident on 31 st March, 2003 and there is restriction or permanent impairing of power of lumber joint. The Medical Officer has referred injury to right arm associated with fracture humerus. He assessed the same at 25%. Medical certificate will not activate the positive finding to demonstrate permanent disability to the extent of 25%. The impairing of the powers as 5 indicated by the claimant was not verified by the Medical Officer in the tune in which it was expected. The collection of the certificate by father of claimant also blast contention of the claimant Kailash having personally got verified from the Medical Officer in charge of the hospital at Dhule. When basically medical certificate of the injured is not established, there could not be any claim before learned Judge to indicate sufferance of injury turned into disability and staking claim against owner of the vehicle or Insurance Company. 9 The contention that it was the third party policy and third party is affected, again is divorced from record. Insurance cover note of the vehicle involved in the accident does not satisfy that while covering risk of third party it covers the risk of the driver of the vehicle. The specific clause in the Insurance cover note illustrate class of persons entitled to driving the vehicle, which in the eventuality, will not allow contravention. The driver himself having suffered injury for his own fault, as there is no eventuality that the vehicle met with an accident to or by any offending vehicle. The risk of driver for self fault is certainly beyond scope of Insurance policy. 6 10 The judgment in the matter of Ningamma clarify legal position. The Lordship of the Apex Court while dealing with the said matter, had also referred to the judgment in Oriental Insurance Company versus Meena Variyal AIR 2007 SC 1609, which also clarify position of law, identical to the facts of the present case. 11 The contention that no policy was produced before learned Member, Motor Accident Claims Tribunal, though finds its reference correctly however, the cover note being produced, it also satisfies the restrictions to liability of the Insurance Company and the competence of the person to drive vehicle. Therefore, non production of the Insurance policy before learned Member, Motor Accident Claims Tribunal, will not be fatal to the assertion of appellant Insurance Company. 12 This Court is not misguided, as the record speaks for itself and nobody is permitted to travel beyond record and legal position. It is rather way ward advancement wanting sage. In the set of above facts, since policy in terms of Section 147 of the Motor Vehicles Act, 1988 does not satisfy and empower the claimant to stake claim, as against owner of the vehicle and 7 consequently indemnify Insurance company, the finding recorded by the learned judge saddling responsibility of indemnification as against appellant / Insurance Company is uncalled for, unjust and illegal. 13 Since it is appeal of the Insurance company, the matter will have to be restricted to the contention as raised by the appellant Insurance Company. Taking survey of above facts, the appeal succeeds. The claim against Insurance Company is dismissed. No cost. The amount deposited by the appellant Insurance Company be remitted after a period of 60 days. Civil Application also disposed of. Rule made absolute. [K.U.CHANDIWAL, J.] tsk/fa1231.06j