rba ¢ . b Q‘B’QE??? HIGH COURT OF CHHATT!SGARH AT BILASPUR DIVISION BENCH HON’BLE SHRI RAJEEV GUPTA C J & HON' L: SFRIT P SHARMA J Coram M.A. No. 184 of 2005 MEMO OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1938 Present: Shri Malay Kumar Bhaduri, learned counsel for the appellants. Shri Dashrath Gupta, learned counsel for the respondent. ORDER (02nd March, 2009) \ The following order of the Court was passed by Rajeev Gupta, C.. ‘: Aw J APPELLANTS 1. Shanti Bai, aged about 45 years, CLAIMANTS widow of Iate Dhhakela, Caste- Ghadhhava; 2. Ajay, aged about 15 years son of Dhhakeia; , ‘Jai Kumar, aged about 12 years son of Dhhakela; 4. Ku. Shailkumari, aged about 1O years, daughter of Dhhakela; Appellant n02 to 4 being minor represented by mother Shantibai wrdow of Dhhakeia by Caste Ghadhhavg and all resrdent of Village JaWali, Tahsii Katghora, at present resident of Juna Bilaspur, Tahsil and District Biiaspur (C.G.) Versus 1‘ RESPONDENT The United lndia insurance NON CLAIMANT Company Limited, through Branch Manager, Korba (C.G.) @ The claimants have preferred this appeal against the impugned award dated 19-1 1-2004, passed by the 10‘“ Additional Motor Accident Claims Tribunal, Biiaspur (for short ‘the Tribunal’), in Claim Case No. 05/2004. 2. The claimants, unfortunate widow and minor children of deceased Dhakela claimed compensation of Rs.24,35,136l— by > filing a claim petition under Section 163-A of the Motor Vehicles Actfor his death in the motor accident on 28-03-2002. 3. According to the claim petition, deceased Dhakela and his wife Shanti Bai were coming back to their village from Bankimongra on their motorcycle. As the road was too narrow deceased Dhakela with a View to give side to the Truck coming from the other side took down his motorcycle from the road. ln the process the motorcycle skidded resulting in multiple serious injuries to Dhakela and his wife Shanti Bai. D‘hakela was taken to the hospital Bankimongra from where he was referred to Bhilai Hospital. Dhakela was admitted in Sector-9 Hospital at Bhilai where he succumbed to his injuries on 31-03-2002. The claimants pleaded that deceased Dhakeia was getting salary of Rs.8,994l- per month from South Eastern Coalfields Limited. 4. The insurer of the motorcycle contested the claim and denied its liability to pay compensation to the claimants on the plea that deceased Dhakela, the owner of the motorcycle did not _ pay any extra premium for covering his risk; the deceased cannot be treated as ‘Third Party’; and the deceased himself was responsiblefor the accident. \t 5. The claimants examined AW-1 Shanti Bai, AW-2 Dadur§m Chandra and AW-3 Ramesh Kumar in support of their ‘claim, whereas the respondent/msurance Company examined NAW-1 Abdul Kaleem in rebuttal. 6. The Tribunal on a close scrutiny of the pleadings of the parties and the evidence led by them held that the deceased cannot be treated as ‘Third Party’. The Tribunal further held that no extra premium was paid for covering the risk of the deceased who was the owner of the motorcycle and was driving the motorcycle at the time of the accident. The Tribunal, therefore, following the' dictum of the Apex Court in the case of Dhanraj v. New India Assurance Co. Ltd. and another, reported in 2004 AIR SCW 5438, dismissed the appellants' claim petition. ’l 7. Shri Malay Kumar Bhaduri, learned counsel for the appellants vehemently argued that as the policy issued by the respondent/Insurance Company was a ‘Comprehensive Policy’, the lnsurance Company was liable to pay compensation to the claimants for the death of deceased Dhakela though he was the owner of themotorcycle and was driving the motorcycle himself at the time of the accident. 8. Shri Dashrath Gupta, learned counsel for the respondentilnsurance Company, on the other hand, supported the award and submitted that the scope and extent of ‘Comprehensive Policy’ has been considered by the Apex Court t in the case of Dhanraj (supra) which decision has been followe§ by the Tribunal in dismissing the appeiiants’ claim petition. 9. Deceased Dhakela was the owner of the motorcycle and was driving the motorcycle at the time of the accident is not in dispute. The insurance policy produced before the Tribunal (Ex.D/1) does not indicate that any extra premium was paid by the owner of the motorcycle for covering his risk. 10. The Apex Court-in‘the case of Dhanraj (supraywhile considering the scope and extent of a ‘Comprehensive Policy’ observed in paras 7 to 9 : “7. J policy. comprehensive Policy would cover the risk of injury to the l ‘ owner of the vehicle also. Section 147 of the Motor i Vehicles Act, 1988 reads as follows: J I “1 47. Requirement of policies and limits of liability-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorized “3 insurer; or (b) insures the person or classes of persons specified in the policy to the extent specified in sub- section(2) - (i) against any liability which may be insured by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of athird'party caused by or arising out of the use of the vehicle in apublic place; We have seen the Policy. It is a comprehensive The question that ‘arises is whether a /’ u k fey, (ii) against the death of or bodily injury to any passenger of a pubiic service vehicie caused by or arising out of the use of the vehicle in a pubiic place: ' Provided that a policy shall not be required (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee-- p. (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. i ' Explanation For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section(1), shall cover any liability incurred in respect of any accident, up to the following limits, namely: (a) . save as provided in clause (b), the amount of liabilityjncurred; X 1‘ \Pa \ l @ (b) in respect of damage to any property cf a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any , iimited Iiability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.” Thus, an insurance policy covers the liab9ility incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to anyvproperty of a third party 'caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for i; (if death or bodily injury to the owner of the vehicle. 8. in the case of Oriental Insurance Co. Ltd. v. Sum'ta Rathi & Ors. [1998 ACJ 121] it has been held that the liability of an Insurance ‘Go‘mpany is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus,vwhere the insured i.e.i an owner of the vehicle has no liability to a third party the insurance Company has no liability also. 9. ln this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that thepremium of u Rs.4,989/— paid under the heading “Own damage” is for «covering liability towards personal injury. Under the heading “Own damage", the words “premium on vehicle and non-electrical accessories” appear. It is thus clear that this premium is towards damage to the vehicle and not for,injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance hasbeen taken out. ln this case, there is no such insurance.” t j l i \ @ \M‘‘ A 11. Now reverting to the present case, it is evident from the policy that deceased Dhakela did not pay any extra premiumtor covering his risk. A ‘Comprehensive Poiicy' in view of the above quoted dictum of the Apex Court in the case of Dhanra] (Supra) cannot be held to cover the risk of the owner of the vehicle In the absence of payment of any extra premium in that behalf. The amount paid by the owner under ‘Own Damage’ was meant for damage to the motorcycleva‘nd not for the injuryfdeath of the owner ofthe motorcycle. f I 12. For the foregoing reasons, we do not find any infirmity in the impugned award whereby the appellants’ claim petition was dismissed. L ‘ 1 3. The appeal, therefore, is liable to be dismissed and is hereby dismissed. 14. Woosts. t “K Sd’l' it i Chieftfustice . T.P.:‘111/a-rma 9’1 ‘\ l Judge subbu 77 1 4