H COURT F CHHATTSGAR AT ILAPR , IGH O IH BSU 00 M. A; NO. 9 OF 2004 PPE NSUR renta Insuance o. Throuh its Divisional Manage Versus EsPONDEM . LAJMANT INSURED Hamat Kumr Kos" n a u‘ OST FORJ'U‘DGMENT ON (¥1APRIL 2007 - Dhlrendra Mlshra Judge g —04-2G0 ALLANT I ANGE Oil r C Ltd; g r. RCI P Sd/ \ [ 7 t J HIGH COURT OF CHEATTISGARH AT BILAS'PUR M. A. NO. 900 OF 2004 J I: n é M E n T \ (Delivered on WIMI2007) Dhirendra Mishra,J ' ‘ ‘ " ‘ The appellantllnsurance Company has preferred thls appeal, ‘ under Sectron 173 of the Motor Vehrcles Act 1988 (heremafter referred to as the Act of 1988’) agamst the award dated 313‘ March 2004 passed m Clalm Case No 9/ 03 by 8th Addrttonal Motor Acc1dent Clams Tnbunal (FTC) Durg (c G ) whereby an award of Rs 14 888/- \ ~ i _’ has been passed m favour of the respondent/msured for mjuncs , sustamed by hJm ’ ,2. Undlsputed facts of the case: are ihat respondent 1s the i I regstered owner of the motorcycle bearmg No C G 07/A-2975 Whlch V L hwas msured by the appellant] Insurance Company mde pohce No ' 200211405 for a pmod commencmg from 10 5 200nm 95 2002 ’ The respondent]msured moved an apphcatron for compensauon Shn Abmshek Smha w1th Shr1 Ghanshyam Patel counsel for he agpellant} P Sahu Insurance counsel for Company the respondent] ‘ Insured ‘ under Sectmn 166 of the Act of 1988 avarmg therem that on ‘ p ’ 4 8 20§01 WhJle he was srttlng as a pllhon rrder on hrs motorcyclf $ whlohi was bemg driven by deceased Laxmmarayan Kurre ; t , APPELL5NT : Oriental Insurance Co. Ltd. INsURANCE _ ’ Through its‘ ’ ‘ Divisional Manager D1ms1ona1 O$ce Malwy Nagar Durg D1st n Durg (C G) ‘ Versus RESbomENT CLAIMANTIINSURED- : Hemant Kumar Kouslk SI o ‘ . S R K0us1k Aged 27 years R/o ‘ ' t Qr No G—I ITI Colony Chhawam BhJlal Dlstt ~ Durg, C Gr mown truck bang dnven rashly and. neghgently and commg rom pos1te dJrectlon, h1t hls motorcycle as also anothmr Hero Honda torcycle, ‘ s a result of Whlch dmmrs of both the motorcycles were ushed and dled on the spot and respondentfmsured sustamed evous mjunes O§ence under Sectmns 304—A 279 337 Was rgtstered agamst the drxver of the unknown truck by Pohce Station -— 1a1—3 and. With these pleadmgs a clmm petmon clmmmg mpensaton of Rs 6 20 000] was hled whlch was contesteti by the ellantilnsurance Company and a prehmmary obJectaon was sed that the sald apphcatlon at the mstance of the espondmtf insured’was not maintainable as he is the lirst party and aintain able. ' _ 1 . I haxk heard learned counsel for the respectiw parties and V perused. the material available on record. Learned 'l‘rlbunal by the unpugled award WhJle dec1dmg 1ssue o 4 “whether the suit 1s not mamtamable as the apphcant respondent herem) lumself 1s owner of the motorcycle and Insured” eld the sult mamtamable The only 1ssue that 1s to be dec1ded by 1s Court 1s as to Whether the claJm petltlon preferred by the spondentjrnsured under Sectton 166 of the Act of 1988 for mpensatton towards damages to mjurles sustamed by hrm 1s mamtamable or not . Learned Tnbunal has dec1ded the above 1ssue 1n favour of the a1mant by referrmg to the condltlons of the msurance pohcy contamed 1n the document of Ex Pi 16 where under the head r7 'V “SECTION -II LIABILITY TO THIRD PARTIES” 1t has been mentloned mus: a. A has; 7;]; Z application, not ‘being at the, instance of third party, is 'not “1. ‘ Subject to the limites liability as laid down ' in the _ schedule here to the company will ‘ i i, indemnify the insured in the event of accident L, caused by or arising out of the use of Motor y Cycle against all sums whlch the Insured shall, become legally liable to pay in respect of \ ‘ ‘ /t - ,v ., _ I _- x \ \777’ _ (5, unl f op mo cr ‘ gn e h1 co app ral w r m 3 4‘ N J ( h th re co 5 cl a )/’/ ,b g2; . t _ _ ‘ f (i) death or bodily injury to any perscn including pérson conveyed on the Motor Cycle provided such person in not carried for hire ‘or‘reward; ‘ _ (ii) damage to property other then property belong'ng to the insured or held in trust by or in the custody or control of the insured or any member of the insuredis house hold being conveyed by the Motor Cycle. -6. Learned Tribunal interpreting the above V stipulation “has observed that the motorcycle was comprehenswely msured for two ‘persons and at the nme of acc1dent Laxrmnarayan was dnvmg the motorcycle Whereas the respondent} Insured was s1tt1ng as a pillron . Vnder m su cumstancw, how 1t can by inferred that 1n case m the acc1dent Where the owner was srttmg m the motorcycle: he 1s not ‘enntled to recelve compensation as the pohcy nowhere mennons that where two persons for Whom the vehicle 1s insured are ruling on a motorcycle and one of them 1s owner of the motorcycle 1n that case the owner shall not be entitled to rece1ve compensanon particularly when the owner has paid premmm 7." From bare readJng of the [policy conditions reproduced heremabove, 1t is manifestly clear that the insurer has indemmfied V the msured against all sums which the insured shall become legally hable to pay in respect of bodily injury to any person including a person conveyed on the motorcycle and also towards the damages to 7 y property other then the property belonging to the insured or held in trust etc by him and conveyed by the motorcycle The nndmg of the > Tribunal that the policy nowhere mentions that if owner of the vehicle 1s traveling in the motorcycle and sustains losses he Will not be entitled for compensation is based on misreading of the conditlons of the policy l l 8:.3 i To apprec1ate the rival submissmns advanced by the partiles it Q i woul be approprlate to refer to the relevant part of Sections i 1 go f the Act of 1988 which reads as under, i L i c E i ‘ ‘ : 65 ‘Jé 65. Claims ’Iribunals.—) A State overnmén “1 ‘(1 Gt may, by notijication in the OEcial Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to‘ as‘ Claims Tribunal] for such area as may be speciaed in the notmcation for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a, i " third party so arising, or both.” , “166 Application for compensation —‘ (1) An application for compensahon arising out of an acc1dent of the nature specmed 1n sub— ‘ , :i section (1) of Section 165 may be made (a) by the person who has sustained the injury; l or ;\ i (b), by the owner of the property; or (c) Where death has resulted h‘om the accident by all or any of the legal representatmes of the dec eased or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of ‘ ' , I 1» the deceased, as the case may be.” ,9. Thus from the conjomt reading of Sections 165 8a 166 of the ct of 1988 1t is manifestly clear that only third party can ‘prefer ‘ f ' claims for compensation in respect of acc1dents involving the death of A or bodily in]ury to, person arising out of use of motor Whicle or damages to any property 10. In the matter of Dhanraj Versus New India. Assurance Co E Ltd and another reported in (2004] 8 8C0 553 the Supreme Court ‘ While conSidering the question Whether comprehensive policy would , ~ cover the risk of injury to owner of the vehicle also and interpretingi Section 147 of the Act of 1988 1 e requirements of polic1es and linii ofliabili has held iii paragraph 8 as under, r g , ~ : ts :: I Thus? an insurance policy covers the liability incurred by the insured in respect o 1 “8. f 1 death of or'bodily injury to any person (including ran owner of the goods or his authorized representative) carried in the vehicle or damage fto any property of {a third party caused by or ”arising out of the use of the motor vehicle. Section 147 does not require an insurance icompany to assume risk for death 0r bodily r f injury to the owner of the vehicle.” 11 In the matter of Smt Urmila Bat and others Vs Police Issuing officer, Branch Manager, Then Oriental Insurance Comyany, the Division Bench of this High Court while dealing with the question as to entitlement of legal representatives of the deceased! owner of the motorcycle involved 1n the acoldent to claim compensauon has held m paragraph 7 as under, {7) ‘We are of the considered View that since the dece’asediwas owner of the vehicle, so far as third party risk is concerned, his legal representatives are not entitled to claim compensation in” accordance with‘the‘ provisions of the Act, 1988, so far as insurance towards personal injuries upto the extent of Rs 1 00 OOOf- is concerned the said claim has a already been sausned by the respondent] Insurance Company 12. In the matter of Oriental Insurance Co. Ltd. Vs. Po’oranlal & r ‘ Am. .reporjted in AIR 2006 Chhattisgarh 77 also this; court- considering? the maintainability of'the application under Sectiony 166 , - of the Act of 1988, ataithe instance of owneriinsured has observed that only a third party‘can prefer claims for compensation in respect of accidents involvmg death of or bodily JnJury to person arising out of use of motor vehicle or damages to any property and applicatioi preferred by the insured owner of the vehicle is not mamtamable * .y l i i r ; as e’ «y he 1s not the thud party and thus the c1a1m petmon at h1$ mstance cannot be mamtamed. 13. On the hams of aforesald d1scuss1on I am m ageement mth ‘the mew takcn 111 the above c1ted Judgnents AccordmglyLthe apphcatlon undar Secuon 166 of the Act of 1988 at the mstance of the respondmtlmsured who was ownm‘ of the motorcycle and msured 1s held to be not mamtamable, the mstant appeal 1s allowed and award! . L Lmpugned ls set as1de. 14. It 1s made clear that the respondent] claJmant shall be at hberty to mltlate appropnate proceedmgs available under the law for recovery of the compensauon towards mjunes sustamed by him 1n accordance mth the condltlons of the, Insurance Pohcy and thls V Judgment shall not come 1n hls way There shall be no order as to costs . Sd- .Dhirendra Mishm Judge V 1 , /