•v'-f IN THE HIGH COURTOF JUDICATURE BILASPUR CHHAmSGARH -<i^-^'-l? . r''.'! .. ..'wn-^ '':S;IE!s«»!ii:"; v:'^fp"y~ M.A.(C)NO. /2008 APPELLANT (Insurer) National Insurance Company Limited, Mandal Karyalay, Akash Ganga Complex Supela Bhilai, Distt. Durg(C.G.) VERSUS RESPONDENTS: 1 .^Chandrika Prasad Devangan, (Clainaants) *> S/o Shri Lalji Devangsa.n , 'Aged \^ ^ ^ ^''. L9o ' about 55 years, R/o Village Arjunda, Post Arjunda, Tehsil Gunderdehi, Distt.Durg (C.G). 2. Smt. Sumitra Bai, W/o Chsindrika Prasad Devangan, Aged about 50 years, R/o Village Arjunda, Post Arjunda, Tehsil Gunderdehi, Distt. Durg (C.G). Claim Sought :- Rs 36,00,000 (Thirty Six lakhs) u/s 163 (A) M.V.Act 1988 at the learned Claim Tribunal below. ^- Award passed ofRs 100000/-(0ne Lac) to be paid within two nionths at the rate of 6% sixnple interest per annuni froni the date of application Y ^- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J @ia iiBE Misc. Appeal (C) No. 384 of2008 Appellant National Insurance Company Limited, Mandal Kaiyalay, Akash Ganga Complex, Supela Bhilai, Distt. Durg (CG). Respondents Vs. Chandrika Prasad Devangan and another. POST FOR PRONOUNCEIVTENT OF ORDER Sd/- JUDGE |t -8-2010 Sd/'- R.N. Chaodrakar Judge ^:1- K'«; ^ ,,^aws^. .<'y^... '^ '''- -<'S>£&s. ^i ^sa^i : ^ s ^^^. • ^ :1; VSfW' r S as.^j' ^^'.^ '••?^,- '"-^i' HIGH COURT OF CHHATTISGARH AT BILASPUR SB: ADDellant (Insurer) HON'BLE SHRI RANGNATH CHANDRAKAR,J Misc Appeal (C) No.384 of 2008 National Insurance Company Limited, Mandal Karyalay, Akash Ganga Complex, Supela Bhilai, Dlstt. Durg Respondents (Claimants) Versus 1 Chandrika Prasad Devangan, S/o. Shri Lalji Devangan, aged about 55 years, R/o. village Arjunda, Post Arjunda, Tehsil Gunderdehi, Distt. Durg (CG). 2 Smt. Sumitra Bai, W/o. Chandrika Prasad Devangan, aged about 50 years, r/o. village Arjunda, post Arjunda, Tehsil Gunderdehi, Distt. Durg (CG). Appeal underSection 173of the lUIotor Vehicle Act, 1988 Present: %~ Shri B.N. Nande.counsel forthe appellant. Shri Praveen Kumar Dhurandhar, counsel for respondent. ORDER (Passed on 1's~ -8-2010) Bythis appeal, theappellant/National Insurance Company Ltd., has challenged the validity of theimpugned award dated 10-12-2007, passed by VIII Additional Motor Accident Claims Tribunal (for short, "the Tribunat"), Durg, in Claim Case No. 53 of 2007 awarding compensation to the tuneof Rs.1,00,000/- along with interest @ N ' ^ "' IB '^^L 6% per annum in favour of the claimants/respQndents on account ofdeath of Dal Singh,who was son ofthe respondents, in a motor vehicle accident and against the appellant/lnsurance Company. The facts of the case, in brief, are that the first respondent was owner of a motor cycle bearingNo. CG -07-LG 1074. He got the said vehicle insured withthe appellant/lnsurance Company. On 29-1-2007 Dal Singh, son of the insured, while driving the motor cycle met with an accident as a result of which he sustained serious injuries. He was admitted in Sector- 9, Bhilai and died on 2-2-2007. Respondents herein filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short, "the Act, 1988") whereby the Tribunal dismissingthe petition under Section 163-A of theAct, 1988 as not maintainable, has awarded Rs.1,00,000/- underSection 147(5) oftheAct to the claimants. Being aggrieved by the said decision, the appellant/lnsurance Company has preferred the present appeal. Learned counsel appearing for the appellant submits that no liability would be fastened upon the appellant as deceased Dal Singh was not third party and therefore, the claim petition filed under Section 163-A of the Act, 1988 against the appellant/lnsurance Company was not maintainable and in view of the Insurance Policy, insurer is not liable to pay compensation as owner of the vehicle was not driving the motor cycle at the time of alleged accident. Thus, the policy does not cover any liability for any injury to other than owner. It has been further submitted that no premium was taken for covering the risk to any third party other ^; than the owner of the motor cycle. Learned counsel further submits that the Tribunal has erred in appreciating the faets and holding the Insurerliable for compensation to the daimantson the ground that policy covers for the same. It is noteworthy that pursuant to the Insurance Policy, owner-cum-driver is only entitled for accidental claim and none else. The premium was taken to that extent only and no stranger or third party comes within the ambit of owner- cum-driver. The statement of the respondent in this regard has been Gompletely over looked and terms and conditions of the policy cover note Ex.D/1 has been misconstrued. The provisions of Section147(5) ofthe Act.1988have been applied ignoring the fact that the motor cycle was being driven by the deceased who is not the owner. The Tribunal ought to have held that the premium whatever was taken by the insurer that was taken for the owner- cum-driver and not for anyone else. Per confra, learned counsel appearing for the respondents supporting theaward of the Tribunalsubmits that Section 147 of the Act, 1988 provides that the policy of insurancewould also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arisingout of the use of vehicle in the public place. He further submits that since the deceased in the present case is not a third party, therefore, the award of the fribunal does not call for any interference. 'x: . '' \ /""^ '%, ^-.^'•'Sf^^'^ ^ ''•;?^^^j%i ^S <h^ T" ...-!' ''"SiSSSfS^ ai 1 w 5. I have heard learned counselfor the parties and perused the award ofthetribunal. 6. Appellant raised contention that keeping in view the relationship between the deceased and owner of the motor vehicle i.e., father and son, he was not a third party. 7. From the pleadings of the parties, following issues were framed. i) Whether applicants' son Dal Singh died on account of an accidentoccurred with Motor Cycle bearing No CG.07 L.G. /107 on 29-1-2007: ii) Whether the appellants are entitled to get to the tune of Rs.36,00,000/- from non-applicant as compensation; iii) Whether applicants' claim under Section 163 (A) of the Motor Vehicles Act, is not maintainable and iv) Relief and Cost. 8. The Tribunal after deciding the above issues has held that the claim petition filed by the respondents herein under Section 163-A of the Act, 1988 was not maintainable. In the light of arguments of both the parties, the question which arises for consideration in the presentappeal is whether the insurer can claim that the policy of the Insurance Company issued in terms of Section 147(5) of the Act, would not requireto cover the risk to the life of the deceased? 9. Section 147(5) ofAct, 1988 reads as under: "(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance ynder this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy \; ^Ksi 1"«';;.-";» purportsto cover in thecase ofthatperson or thoseclasses of persons." 10. In the light of the above, 1 have perused the Insurance Policy (Ex.D/T) wherein it has been mentioned that the respondenVapplicant Chandrika Prasad Devangan insured his motor cycle with appellant bearing policy No.320900/31/06/6200004802 for the period from 19-1-2007 to 18- 1-2008. It has also been specifically mentioned that compulsory P.A. to owner—cum-driverRs. 50/- has beenpaid. On perusal of the awardof the tribunal, it is clear that issues Nos. 1 to 3 framed by the tribunal were decided and the Tribunal finally held that the claim of the applicants/ respondents herein filed under Section 163-AoftheAct,1988 was not maintainable and question involved in the instant case is whether the Tribunal has awarded the relief and cost under Section 147(5) ofthe Act. 11. Learned counsel appearing for the appellant in support of his submissions has relied upon a decision in the matter of New India Assurance Company Ltd., Vs. Sadanand Mukhi and others, reported in 2009 (1) T.A.C. 425 (SC) wherein Hon'ble the Supreme Court has held as under: " "13. The provisions of the Act, therefore, provide for two types of insurance — one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate theowner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property. \ \ i':'fSs j^- •'• 's .:.ffl?^?% ^vay^ ji ^ '•. ' '^;.. ^/'.^' 14. It is not a case where even Section 163-A of the Act was resorted to. The respondents filed an application under SeGtion 166 of the Act. Only an Act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two-wheeler, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 ofthe Act, in our opinion, is not correct. '16. Only because driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehideand the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance polides. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory aufhority fixes the norms and the guidelines". 12. Even though the Tribunal held thatthe claim petition under Section 163-A of the Act is not maintainable, but awarded Rs. 1,00,000/- under Section 147(5) the Act 1988 to the claimants. In the considered opinion of this Court, the Tribunal was not justified in awarding Rs. 1,00,000/- to the claimants under Section 147(5) of the Act, 1988 and the insurance policy has not been considered in right perspective. 13. Havingconsidered all the facts and circumstances of the case, material available on record and in view of the above quoted dicta of theApex Court in the case of New India Assurance Company Ltd. Vs. Sadanand IVIukhi (supra), 1 am ofthe considered opinion that the Insurance Company was not liableand the appeal preferred by thelnsurance Company deserves to be allowed. 's. ~\ 14. Accordingly, the award dated 10-12-2007, passed by VIII Additional Motor Accident Claims Tribunal is set aside. The appeal is allowed. 15. No order as to costs. Sd/- R.N. Chandrakar Judge Y