HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 155 of 2003 United India Insurance Company Ltd; through its Divisional Manager, Ranipur Modh, Haridwar ......... Appellant Versus 1. Rajendra Singh Barthwal S/o Sri Shyam Singh R/o village Syupuri, Patiwari circle Saterakhal, Tehsil and District Rudraprayag .......... Claimant-respondent 2. Kamendra Bhushan S/o Manik Lal village Darmyari, Parwari Saterakhal, Tehsil and District Rudraprayag 3. The New India Assurance Company through its Divisional Manager, Ranipur Modh, Haridwar ........... Respondents Sri D.S. Patni, Advocate for the appellant Sri R.P. Nautiyal, Advocate for respondent no. 1. Sri T.A. Khan, Advocate for respondent no. 3. Dated: February 13,2008 Hon’ble Rajesh Tandon, J. Heard Sri D.S. Patni, counsel for the appellant, Sri R.P. Nautiyal counsel for the claimant and Sri T.A. Khan counsel for respondent no. 3. By the present appeal, the appellant has challenged the judgment and award dated 18.4.2003 passed by the Motor Accident Claim Tribunal, Rudraprayag. Briefly stated claimant Sri Rajendra Singh has filed a claim petition for the grant of compensation on account of injuries sustained by him in a motor vehicle accident on 16.6.2001 at 4.30 PM. near Thalasu District Rudraprayag. 2 According to the claimant he was going to Rudraprayag from Chopta by his motor cycle No. UP 07 L 8997. Opposite party Kamendra Bhusan was driving Jeep No. UP 18-0157 rashly and negligently and dashed the motor cycle due to which the claimant sustained grievous injuries including fracture of his right leg. He was working as accountant on contract basis and due to accident he could not continue to his job. Opposite party Kamendra Bhusan filed written statement and has alleged that the accident had taken place due to own negligence of the claimant. The jeep was insured with the New India Assurance Company at the time of accident and the insurer is liable to pay compensation, if any. Opposite party United India Insurance Company, insurer of the motorcycle in its written statement has alleged that the accident has not taken place due to rash and negligent driving by the motor cycle rider. Opposite party the New India Assurance Company insurer of the jeep in its written statement has submitted that the accident had taken place due to negligence of the claimant himself and United India Insurance Company with whom the motorcycle was insured is liable to pay compensation. On the pleadings of the parties the Claims Tribunal has framed as many as five issues. The claimant examined himself as P.W.1 and has filed copy of F.I.R. Medical report and bills and voucher for medical treatment. The opposite parties have not adduced any evidence. On the basis of the evidence on record the Claim Tribunal has held that the accident has taken place due to contributory negligence of the claimant and jeep driver. The Jeep and motorcycle were validly insured with the New India 3 Assurance Company and the United India Insurance Company, respectively, at the time of accident. Both the vehicles had valid documents. The claims Tribunal has awarded a sum of Rs.3,00,000/- as compensation for the medical expenses and pecuniary loss along with 9% pendente lite and future interest. The Claim Tribunal has held that as the accident has taken place due to contributory negligence by the claimant and opposite party Kamendra Bhushan, therefore, insurance companies of both the vehicles i.e. Jeep and the motorcycle are liable to pay compensation. Both the New India Assurance Company and the United India Assurance Company were directed to pay equal half amount of the compensation. Feeling aggrieved the United India Assurance Company has filed the present appeal. The only point which has been raised by the counsel for the appellant is that the motorcycle was insured for third party claim and no extra premium was paid to the insurance company so as to pay the compensation to the owner of the motorcycle, therefore, the appellant United India Insurance Company cannot be held liable to pay compensation to the claimant. The appellant has filed the copy of the insurance cover note of the motorcycle Annexure-1 (A) with the memo of appeal. This paper is not disputed by any of the opposite parties. A perusal of the insurance cover note of the motorcycle shows that no premium has been paid for additional risk. Thus the insurance company is liable to satisfy only third party claim and not the claim made by the insured himself. So far as the cause of accident is concerned the trial Court has held both the claimant and the jeep driver equally responsible for the accident. The claimant has examined 4 himself as P.W.1 and has stated that the accident has taken place due to rash and negligent driving by the Jeep driver. As against this no evidence has been adduced by the owner of the jeep to prove negligence of the motorcycle rider. Jeep is a heavy vehicle than the motorcycle and in case of collision between the two, the motorcycle and its rider would sustain much injury, therefore, drivers of both the vehicles cannot be held equally responsible for the accident. In my opinion the contribution of the jeep driver towards the accident is much higher than the motorcycle rider. In these circumstances I hold that the contributory negligence of the jeep driver towards the accident is two third while the negligence of motorcycle rider is held as one third. Thus the owners or insurers of both the vehicles would be liable to pay compensation in the same ratio. However, as held above the appellant United India Insurance Company is not liable to pay compensation to the claimant, as the insured himself is not covered by the insurance policy taken by him. Counsel for the appellant has placed reliance on the observations made by the Apex Court in the case of Dhanraj vs. New India Assurance Company Ltd. and another, 2004 (8) SCC 553. Apex Court has observed as under: “8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not 5 require an insurance company to assume risk for death or bodily to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi1 it has been held that the liability of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also. 10. In 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 the premium of Rs. 4989 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 has been taken out. In this case there is no such insurance.” In view of the above, since the appellant United Insurance Company has not indemnified the P.A. (Personal accident) of the owner of motorcycle, I do not find any liability of the appellant to pay compensation under section 166 of the Motor Vehicles Act. However, the owner of the jeep and its insurer the New India Assurance Company are liable to pay compensation of their share to the claimant. As such the insurer of the jeep i.e. the New India Assurance Company, respondent 3 is liable to 6 pay 2/3 amount of Rs.3,00,000/- i.e. Rs.2,00,000/- as compensation to the claimant. Accordingly, the appeal is allowed and the award against the appellant is set aside. The award is modified to the extent that respondent no. 3, the New India Assurance Company Ltd; would pay two third amount i.e. Rs.2,00,000/- of compensation along with interest. There would be no order as to costs. Dated: February 13 2008 Rajesh Tandon, J. *Dhyani