IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.:450 of 2004 Date of decision: 3.12.2009 Nirmala Devi & Ors. …Appellants Versus Bimla Devi & Others. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes.. For the Appellants: Mr. Ajay Sharma, Advocate. For the respondents No.2 Mr. Sanjeev Sood, Advocate. For the respondent No.3 Mr. Rakesh Chauhan, Advocate. Deepak Gupta, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act 1988 (hereinafter referred to as the ‘Act’) is directed against the award dated 16.10.2004 passed by the learned Motor Accident Claims Tribunal(II), Una, whereby the claim petition filed by the claimants has been dismissed. Briefly stated the facts of the case are that the claimants are the widow and children of late Shri Balram Kumar Kaushal, who was the owner of Truck No. HP-19-4846. This truck met with an accident on 18.8.1998 when it was on its way from Shimla to Delhi. The claimants had filed a claim petition alleging that the accident had occurred due to the rash and negligent driving of the driver of the truck. The Insurance Company contested the claim petition on various grounds and one of the main grounds taken was that the claim petition in respect of the death of the owner of the truck itself was not maintainable. The learned Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving by Nand Kishore but further held that Shri Balram Kumar Kaushal was not travelling as owner of the goods and hence dismissed the claim petition. I have heard Shri Ajay Sharma, learned counsel for the appellants and Shri Sanjeev Sood and Shri Rakesh Chauhan, learned counsel for the respondents. Even assuming for the sake of arguments that the deceased was carrying his own goods in the vehicle, the question which would arise, is whether the claim petition by the heirs of the truck owner can be filed against the Insurance Company. It must be remembered that when Insurance Company grants insurance cover in respect of the vehicle it basically agrees to indemnify the owner for the damages which the owner may suffer on account of claims filed against him. The owner or his legal representatives cannot file a claim against themselves. The Apex Court dealt with same question in Dhanraj v. New India Assurance Co. Ltd and another (2004)8 Supreme Court Cases 553. In that case the claimant was travelling in a jeep owned by him alongwith other. The jeep met with an accident due to the negligence of the driver. The owner filed a claim petition claiming compensation. The Apex Court held that the claim petition was not maintainable and held as follows:- “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 authorized 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 require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi it has been held that the liability of an insurance company is only for the purpose 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.” This court has also taken the same view in United India Insurance Co. Ltd. v. Smt. Chander Prabha Bhatt and Others, 2005(3) Shim. L.C. 117, wherein it was held as follows:- “12. What is the purpose of an insurance policy which is compulsorily required under the Motor Vehicles Act? The purpose clearly is that if any third party suffers damage due to an accident with a vehicle, it should be able to claim compensation from the Insurance Company. The intention of the legislature was that the injured party might find it very difficult to recover the amounts from the owner of the vehicle and, therefore, insurance was made compulsory so that the claimants could get their claims from the Companies. However, the Act does not require that the policy necessarily cover risk to the owner himself. Some policies which in common parlance are termed as comprehensive policies cover various types of risk including own damage to the vehicle. In that event extra premium is to be paid and it is by way of a mutual contract between the Insurance Company and the Owner that such risk is covered. In the present case no clause has been pointed out in the policy, Ext. RX, which shows that the Insurance Company had undertook to cover the risk in case of death or injury to the owner. 13. Another important question which arise is, - can an insurance policy which is basically meant for covering risk to third parties be required to cover the loss to the owner himself? The owner in the present case has died. Supposing he was the injured. Could he have filed a claim petition against himself? Obviously not. A person cannot be both the plaintiff and the defendant. The Insurance Company is to indemnify the owner for damages which he is liable to pay. Therefore, it is quite obvious that the insured or his legal heirs cannot file a petition against the Insurance Company directly. There must be first an award against the insured and only then the Insurance Company is liable. This is obvious from the scheme of the Act and especially Section 149 of the Act which provides that the Insurance Company has to satisfy judgments passed against the insured.” In fact, the Apex Court has gone further and has held that even a petition under Section 163-A of the Motor Vehicles Act by the heirs of the owner of motorcycle, which was involved in the accident resulting in his death, is not maintainable. The Apex Court decided this issue in Oriental Insurance Company Limited v. Rajni Devi and Others, (2008) 5 Supreme Court Cases 736 and after discussing the entire law held as follows:- “11. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janak Raj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to.” It is obvious from the reading of the aforesaid judgments that a person cannot file a claim against himself. The owner if injured in an accident involving his own vehicle cannot file a claim against the driver or the insurance company, since the owner himself is liable for the negligence of the driver and the insurance company is only required to indemnify the owner for the damages payable by him. On the same analogy the heirs also cannot file a claim petition for the death of the insured. Therefore, I am of the considered view that the claim petition itself was not maintainable. The appeal is accordingly dismissed with no order as to costs. 3rd December, 2009 (Deepak Gupta), Judge (VT)