IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.217 of 2005 BRANCH MANAGER , NATIONAL INSUR Versus RANJANA JHA ----------- 12. 3.12.2008 With the consent of both sides this appeal was finally heard under Order 41 Rule- 11 and 12. The appeal is against the award dated 7.3.2005 of the Claims Tribunal cum District Judge, Darbhanga passed in claim case No. 65 of 2004 whereby a compensation of Rs.50000.00 under Section 140 of the M. V. Act (hereinafter referred as the Act.) on the basis of no fault basis has been award. It is admitted by the counsel for the respondents/claimants that the claim case was filed with a prayer under Section 140 only and that on filing of such petition the amount of interim compensation on the basis of no fault basis was allowed by the learned Claims Tribunal and the case was finally decided by the said award dated 7.3.2005. The case of the respondents/claimants was that on 12.5.2004 at 4 P.M. deceased Suman Kant Jha, the owner of the tempo bearing registration No. BR 7P/0451 was traveling in the tempo and that due to rash and negligent driving of the said tempo by its driver and also due to overloading, the tempo turned down on the left side and that due to the accident, the deceased received injuries and died at the spot. F.I.R. under Darbhanga P.S. Case no. 88 of 2004 under Sections 279, 304A of the Indian Penal Code was lodged against the driver. It was after the accident that the claim case with a prayer for interim relief as under section 140 of the Act only was filed. Any - 2 - further or final claim of compensation under Section 163A or 166 of the Act was not put forth before the Claims tribunal. It was due to the filing of that petition under section 140 of the Act that the interim claim of Rs.50000.00 has been awarded by the impugned award dated 7.3.2005. During hearing the learned counsel for the appellant insurance company admitted that the appellant was the insurer of the vehicle but disputed its liability to make payment of the interim compensation on the ground that the terms of the policy did cover the risk of third party and risk to the vehicle as well as the goods or the representative of the goods carried in the vehicle and that the insurance policy did not cover any risk with respect to the personal injury to the owner, inasmuch as, any separate premium for covering the risk for injury to the owner had not been taken by the appellant insurance company for covering any risk in that regard. The learned counsel for the appellant also argued that the interim claim on the basis of no fault basis under Section 140 of the Act is payable by the insurer only under the circumstance when ultimate claim under section 163A or 166 of the Act has been preferred and the insurer has been prima facie shown to be liable for the payment of the ultimate claim laid before the Claims Tribunal. It was further submitted that when under the policy, the insurer is not liable for any kind of compensation with regard to personal injury to the owner of the vehicle, any interim claim, even no fault basis, under Section 140 of the Act, cannot be awarded by the Claims Tribunal. The learned counsel went to the extent of arguing that the respondents/claimants have designedly or willfully did not put any - 3 - final claim under section 163A or 166 of the Act before the Claims Tribunal and a simple petition under section 140 of the Act was filed with a view escaping the liability of the claimants to prove the liability of the insurer. In view of the arguments and objections as raised by the learned counsel for the appellants, it is necessary to examine whether the Claims Tribunal was justified in allowing the claim of interim compensation under Section 140 of the Act without considering the aspect that the claimants were unable to show prima facie that the appellant/insurer was liable to pay the ultimate or final compensation which could have been passed in that case. It is also necessary to examine whether the insurer was liable for any personal injury to the owner of the vehicle or not. No doubt, in view of the Court’s Division Bench judgment in the case of New India Assurance Company Ltd. Vrs. Faida Hussain and another, 2001 (4) PLJR 557 a claim under Section 140 of the Act can be filed directly without filing any claim under Section 166 of the Act. Thus, the claim of the respondents/claimants could not be rejected simply on the ground that any petition for filing compensation under Section 166 of the Act was not filed. Any way but this case has to be examined with respect to its other aspects involving the liability of the insurer which will have a final bearing on the decision of the matter involved. In reply to the submission of the appellant’s counsel that insurance policy did not cover any risk of personal injury to the owner of the vehicle, the learned counsel for the respondents submitted that the insurer has taken a premium of Rs.2475.00 with regard to coverage of risk and damages regarding - 4 - “O.D” and “T.P” as shown in the policy. The learned counsel for the appellant concedes that the premium of Rs.2474.00 was taken under the heading or “O.D. and “T.P.” but he explained that the word “O.D.” means own damage which means damage to the vehicle and “T.P.” means third party. Thus, the learned counsel explained that the policy covers the risk with respect to the damages and injury to the vehicle or third party. It was further argued by the learned counsel that the break up of the insurer does not mention anywhere that any amount was separately charged for personal accident of the owner. The learned counsel for the respondents were also not able to say that any separate amount was charged as insurance coverage for the personal accident of the owner. In support of his contention, the learned counsel for the appellant cited the decision in the case of Dhanraj Vrs. New India Assurance Company Ltd. and Anr. reported in 2004(4) PLJR supreme court 191 wherein the Apex Court has held that Section 147 of the Act, limits the coverage of liability under insurance policy in respect of death or bodily injury to any person (including the 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. It was further held that Section 147 does not require insurance to assume the risk for death or bodily injury to the owner of the vehicle and that where the injured (owner of he vehicle) has no liability to a third party, the insurance company has no liability also. It was also held that owner of a vehicle can only claim provided a personal accident insurance has been taken out. Thus it has been held in categorical terms that insurer is not liable to pay for any - 5 - compensation with regard to any injury to the owner of a vehicle unless a separate insurance making payment therefore, with regard to personal accident has been made with the insurer. In such view of the matters, I find that in the instant case, since there was no insurance coverage with regard to personal accident relating to the owner of the vehicle, the insurance company i.e. the appellant could not have been made liable for any claim to be decided and awarded by the Claims Tribunal with regard to the personal injury or damage to the owner of the vehicle. When the insurance company is not found liable in the aforesaid manner for any compensation in respect of personal injury to the owner there was no scope for granting of any compensation on no fault basis for such claim of personal injury to the owner. Thus, considering, I find that the claim of interim compensation as allowed by the learned Claims Tribunal vide impugned award is not sustainable under law; hence, the same is hereby set aside. The appeal is accordingly allowed. The learned counsel for the appellant submitted that statutory amount of Rs.25000/- remains deposited in this appeal and he seeks permission for its withdrawal. He will be at liberty to withdraw the amount. Ravi./ ( C. M. Prasad, J. )