,.llil:luu'll] .'',t::a. 1'n'a l't <..¥': •a^.?E.I!l; •.;',•>,-?- ^<^ HI6H COURT OF CHHATTES6ARH AT BILAbruK Misc. Appeal No. 1364 of 2004 ^ APPELLANT INSURER RESPONDENT claimant National Insurance Co. Ltd., through Assistant Manager, National Insurance Co Ltd., B-l. Taha Complex, First Floor, Ring Road, Priyadarshini Na9ar, Bilaspur (C.6.. Versus Smt. Basanti Mandal O R & E R Post for3'?-7-2009 I Sd/- N.K-AgrawaI Judge a* jff'-'^S''"^ y s" 1:"- a«K,". i \ ~^^"^f'^^ ^' s. ••». y / HIGH COURT OF CHHATHS6ARH. BILASPUR MISC. APPEAL N0.1364 OF 2004 APPELLANT/ INSURER National Insurance Co. Ltd., Through Assistant Manager, National Insurance Co. Ltd., B-l, Taha Complex, First Floor, Ring Road, Priyadarshini Nagar, Bilaspur (Chhattisgarh) Versus RESPONDENT/ CLAIMANT Smt. Basanti Mandal, Wd/o Nepal Chand Mandal, aged about 50 years, R/o Near Vidya School, Sect-1, Shankar Nagar, Raipur (C.6.) Memorandum of appeat Under Sectlon 173 of the Motor Vehicle Act. 1988 Present: Shri Sanjay K. Agrawal, Advocate with Shri Sourabh Sharma, Advocate for the appellant, Shri S.C. Verma, Advocate for Respondent. SB: HON'BLE SHRI JUSTECE N.K. A6ARWAL O R b ER (z.7-07-2009) The instant appeal has been directed by the National Insurance Co. Ltd., against the award dated 29-10-2004 passed by Xth Additional Motor Accident Claims Tribunal, Raipur (for short 'the Tribunal') in Claim Case No.50/2004 whereby and whereunder an amount of Rs.1,17,000/- along with interest © 97o per annum from the date of application i.e. 18-06-2001 has been awarded in favour of claimant holding liable to the appellant insurance Company for its payment. 2. Brief facts giving rise to this appeal are that on 14-01-2001 deceased while driving the jeep No. MP 23-4859 owned by him, met with an accident with bus No. MP 23 J 0570 and pursuant to the injuries sustained in the said accident, he died. .W(¥X; •f' 3. The unfortunate widow of the deceased Napal Chand claimed a compensation of Rs.6,33,500/- by filing a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') against the appellant Insurance Company for the death of her husband i.e. the owner of the jeep. It was pleaded by the claimant in para 2 of the Claim Petition that as per the terms and conditions contained in the policy of insurance, the owner of the vehicle was also entitled to drive the same, and, therefore, the policy has been issued covering the risk of deceased Nepal Chand i.e. the owner of the vehicle. In reply to the claim petition, the Insurance Company pleaded in its reply para 4-A that the deceased insured had not paid any separate premium for covering his risk, and, therefore, the claim preferred against the appellant Insurance Company being not maintainable, deserves to be dismissed. 4. Learned Tribunal on appreciation of evidence and material available on record came to the conclusion that the appellant Insurance Company is liable to pay compensation and awarded fts.l,17.000/- as compensation to the claimant. 5. Shri Sanjay K. Agrawal, learned counsel for the appellant Insurance Company would submit that as per the Motor Vehicles Act and rules, owner is not entitled to get any compensation, if he drives the vehicle and falls in an accident. As the insurance policy is a third party in nature, the contract between the insured and insurer is that if any accident occurs out of the use of the motor vehicle, then only third party is entitled to get compensation. The insurer and the insured is the first and second party. But in this case, the deceased was the owner of the vehicle and was driving the same and he met with an accident. Though as per policy conditions, the deceased was entitled to drive the vehicle still he is not the third party. Hence, the claimant is not entitled to get any compensation. He further submitted that by drawing the attention ^ ^"\ of this Court towards the policy of insurance Ex.D-1 that no additional premium was paid in respect of entire risk of death or bodily injury of the owner of the vehicle. The learned Tribunal has wrongly fastened the liability upon the Insurance Company. 6. Per contra, Shri S.C. Verma, learned counsel for the claimant would submit that a bare reading of pleadin9 of the parties, policy of insurance Ex. D-1 and the statement of appellant's witness would reveal that a premium of Rs.15/- has been taken for covering the risk of owner-cum-driver and the learned Tribunal has rightly fastened the liability to pay compensation upon the appellant/Insurance Company. 7. I have gone carefully through the averments made in the claim petition; written statement, policy of insurance Ex. D-1 and the evidence adduced. 8. The question which arises for determination in this appeal is that in the facts and circumstances of the case, whether or not the risk of owner is covered under the policy of insurance Ex. D-1 by which the premium of Rs.15/- has been taken covering the risk of employee driver. 9. The position of law is now well settled in view of the decision of Supreme Court in case of Dhanraj vs. New India Assurance Co. Ltd.; reported in (2004) 8 SCC 553 and the judgment of the Supreme Court in case of Oriental Insurance Co. Ltd. vs. Jhuma Saha (Smt.) and others: reported in (2007) 9 SCC 263 that statutory insurance policy covers the liability incurred by the insured in respect of death or bodily injury a third party caused by or arising out of the use of vehicle. Section 147 of the Act does not require an insurance policy to assume risk for death or bodily injury to the owner of the vehicle. However, an owner of a vehicle intends to cover himself from the said risk; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. 10. The contention raised by Shri Verma, learned counsel for the claimant that as the witness of the Insurance Company itself deposed that by taking Rs.15/- as premium which has not been taken for a named driver, any person can drive the vehicle including owner and therefore, by taking Rs.15-/ as a premium in fact the risk of owner-cum-driver has been undertaken by the appellant Insurance Company, is not correct in the facts and circumstances of the case, because owner of the vehicle is neither third party nor can be said to be employee of his own. By taking Rs.15/- as premium, the only risk which is covered is of employee driver of the owner and not of the owner-cum-driver. The statement of the witness of Insurance Company that owner was also entitled to drive the vehicle only means that for driving the vehicle as per policy conditions named driver is not required. By the said statement, it cannot be said that the appeltant Insurance Company has undertaken the risk providing a personal accident Insurance to the owner. 11. The Supreme Court in case of Oriental Insurance Company Limited vs. Sudhakaran K. V. and others; reported in (2008) 7 SCC 428. has observed in para 13 as under: "13. In terms of Section 147 of the Act only in regard to reimbursement of the claim to a third party; a contract of insurance must be taken by the owners of the vehicle. It is imperative in nature. When, however, an owner of avehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof." 12. In view of the facts and circumstances of the case, and in view of the dicta of Hon'ble the Supreme Court referred herein above, the learned Tribunal went wrong in fastening the liability upon the appellant Insurance Company and the same deserves to be set aside. 13. For the reasons aforementioned, the impugned award cannot be sustained and the same is set aside. 14. The appealis accordingly, allowed. 15. However, there shall be no order asLto.£ofit<:—- \ N.K.Agrawal \ Judge Kvr