IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.253 of 2009 BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., Darbhanga Branch, Darbhanga (Insurer of Motor Cycle No. BR-7D- 6357) (Opposite Party No. – 2) ............... Appellant. Versus 1. SITA DEVI, Wife of Sri Asha Lal Yadav, Resident of village – Khutwara, P.S. – Sadar, District – Darbhanga. (Applicant) ................. Respondent. 2. Asha Lal Yadav, Son of Ram Lochan Yadav, Resident of Village – Khutwara, P.O. – Kabaria, P.S. – Sadar, District – Darbhanga (Owner of Motor Cycle No. BR-7D-6357) (Opp. Party No. 1) ........ Respondent. ----------- Advocate for the Appellant :- Mr. Prakash Kumar, Advocate. Advocate for the Respondent :- Smt. Rekha Prasad, Advocate. 05/ 09.03.2011 This miscellaneous appeal is directed against the order dated 19.02.2009 passed by the District Judge-cum- Claim Tribunal Darbhanga in Claim Case No. 92 of 2008 by which he has directed to pay a sum of Rs.50,000/- as no fault liability under Section 140 of the Motor Vehicles Act for the death of the son of the complainant. 2. The case of the complainant is that one Prasant Kumar Yadav proceeded on motorcycle bearing No. BR 7D 6357 and was driving the motorcycle and Pradeep Kumar Sah was sitting as pillion rider. It is alleged that a truck being driven by the driver rashly and negligently dashed the motorcycle from back side and run away by which Prasant Kumar Yadav sccumed to injury. The First Information Report was lodged on the fardbeyan of Pradeep Kumar Sah, the pillion 2 rider. Police on investigation could not trace the driver and submitted final form as fact true. The bike was insured in the name of Asha Lal Yadav, the father of the deceased Prashant Kumar Yadav, under Motorcycle Package Policy issued by the United India Insurance Company. 3. The mother of the deceased is the claimant and claim petition is against the owner and the insurer. The Insurance Company appeared and filed the written statement denied its liability on ground that the driver and owner of the offending truck has not been impleaded. It is asserted that the claim is not maintainable against the owner as insurer of the motorcycle is the father of the deceased hence the deceased is not a third party. However, the Tribunal passed the impugned order for interim compensation under Section 140 of the Motor Vehicles Act. 4. The learned counsel for the appellant, however, challenged the impugned order on the ground that the motorcycle belong to the father of the deceased and the deceased was driving the motorcycle and met with the accident and hence he is not a third party to claim compensation under the Motor Vehicles Act and the decision reported in AIR 2009 (2) SCC 417 (New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors.). A true copy of the policy has been 3 filed by the Insurance Company before this Court in which the said vehicle was insured under a Motorcycle Package Policy of motorcycle/scooter, Motorcycle for the period from 13.06.2007 to 12.06.2008. The date of occurrence is 10.03.2008. However, the said policy also covered the risk of owner-driver of the motorcycle to the tune of Rs.1,00000/- for which the extra premium paid. 5. The learned counsel for the respondent- claimant, however, contended that the insurance policy of motorcycle covered the risk of owner driver for which the extra premium has been paid and since the policy of the motorcycle is statutory policy under Motorcycle Package Policy which covers the risk of the owner driver to the extent of Rs.1,00000/- for which extra premium paid and hence deceased being driver of the said vehicle covered by contractual liability under Section 147 (b) (ii). 6. On respective submissions of the parties a question for consideration is whether the claimant is entitled to compensation. 7. The fact envisages that occurrence took place as truck having dashed the motorcycle run away. The deceased is the son of the owner of the motorcycle who was driving the motorcycle when met with the accident. However, a true copy 4 of the insurance policy has been filed by the Insurance Company at the time of the hearing which shows that the policy is the Motorcycle Scooter Package Policy and extra premium has been paid covering the risk of one lakh for the owner-driver. 8. Hence, it is apparent that if the policy is contractual and policy covers the risk of the owner-driver for which extra premium has been paid then the risk of death and bodily injury of the owner-driver is covered. 9. In decision reported in 2009 (2) SCC 417 (Supra) the policy was Act policy and no extra premium was paid to cover the risk of owner and driver and the motorcycle was being driven by the son of owner and hence held that the son of owner met with accident while driving the vehicle and hence was not a third party as no extra premium paid to cover the risk of owner and driver and hence the claimant is not entitled to compensate, it was observed in paragraph 11 “Whereas the insurance company is bound to compensate the owner 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.” It is further observed in paragraph 13 5 “.............If it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid.” It was further held in para 13 of (Jhuma Saha case) (2007) 9 SCC 263. “(13) The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(1) (b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case.” Hence, ratio of the decisions reported in 2009 (2) SCC 417 (Supra) is if the policy is Act policy and no extra premium has been paid to cover the risk of owner and driver then the claim of the claimant for the death of driver and owner is not maintainable but if the extra premium is paid which covers the risk of owner and driver then the insurance company shall be liable to pay the compensation. 10. However, in the fact and circumstance of the case reported in decision 2009 (2) SCC 417 (Supra) the policy was an Act/Statutory policy which did not cover the risk of the owner and driver and hence held that the Insurance Company was not liable. 11. However, having regard to the fact and circumstance of the present case, at hand, the policy is 6 Motorcycle Scooter Package Policy which covers the risk of owner-driver for which extra premium has been paid covering the risk of owner-driver to the extent of one lakh and hence owner-driver are covered under the policy and when the policy itself Motorcycle Package Policy cover the risk of driver and person carried. 12. Hence, having regard to the fact and circumstance, once it is established that policy cover the risk of owner-driver for which extra premium paid, hence, the risk is covered and the impugned order has been passed for interim compensation. Hence, I do not find illegality to interfere with the impugned order. 13. Hence, this miscellaneous appeal is dismissed. Kundan (Gopal Prasad, J.)