Case: New India Assurance Co. Ltd Vs. Sadanand Mukhi

First respondent was owner of a motor cycle. He got the said vehicle insured with the appellant company; the policy being valid for the period 9.9.1999 and 8.9.2000. On 8th September, 2000 Tasu Mukhi, son of the insured, while driving the motor cycle met with an accident and died. The accident allegedly took place as a stray dog came in front of the vehicle. A First Information Report was also lodged. Respondents herein filed a claim petition. Amongst them, first respondent, who is the owner of the insured vehicle, was the applicant.4. Appellant herein raised a specific contention that keeping in view the relationship between the deceased and the owner of the motor vehicle i.e. father and son, he was not a third party, statingThat section 165 M.V. Act clearly postulates that the insurer is liable to indemnify the risk of the Third party. During the motor vehicle accident and the policy also speaks that in the case of rash and negligent driving the insurer is liable to indemnify the owner. Here in this case the driver of the vehicle is admittedly not a third party and as such the Tribunal has no jurisdiction to pass any order under the Motor Vehicle Act.6. That so far the negligence of the driver of the Motor cycle is concerned the claimants must establish affirmatively and unless it is proved the Claim Tribunal cannot pass any order of compensation under the Motor Vehicle Act, 1988.7. That it is further submitted that the claimants had failed to plead in their claim petition about the negligence which resulted the accident. On the other hand, the circumstances speak that it was the deceased himself who was driving the motor vehicle in uncontrollable speed and in rash and negligent manner which cause accident as a result of which he and the pillion rider fell down and deceased died. Therefore, in absence of negligence on the part of the owner of the vehicle the Claimants cannot seek compensation on the basis of the provisions of the Act.8. That the act suggests that the deceased not being a third party himself caused the accident and out of such act the loss allegedly occurred to him is not supposed to be a person coming within the scope, ambit and provisions of either section 165 (1) of section (1) of the Motor Vehicles Act, 1988.In view of the aforementioned pleadings of the parties, issues were framed in the following termsWhether the claimants have any cause of action or right to sue and the case is maintainable and the deceased was a third party?2. Whether the accident took place due to rash and negligent driving of the vehicle Yamaha Motor Cycle No.BR-16B-6002 by the driver?3. Whether the deceased was himself rash & negligent in driving the vehicle and was responsible for the accident and whether the deceased died due to motor vehicle accident?4. Whether the owner have violated the terms and conditions of the vehicle for which the vehicle has been insured under the Insurer, The New India Assurance Co. Ltd. ?5. Whether the claimants are entitled to receive the compensation amount and if so what should be the quantum of compensation?6. Whether the insurer of the vehicle is liable to indemnify the insured owner of the vehicle?7. Whether the claimants are entitled to get any relief or reliefs as claimed byThe Tribunal did not enter into the question involved herein.However, while determining issue Nos.2 and 3 it was heldthe evidence led on behalf of claimant is practically ex-parte in nature and it goes to show that the deceased died in connection with a vehicular accident. In other words, he died out of the use of a vehicle. Both the issues are decided in this way in favour of the claimants.On issue Nos. 1 and 7 it was opinedNos. 1 and 7 : On the basis of the discussions made above, it follows that the claimants application is maintainable and the applicants are entitled to receive compensation from the O.P. No.1 as indicated above. Both the issues are accordingly decided in favour of thetherefore, no decision was rendered on the said issue.7. Before the High Court appellant raised specific contentions in its Memorandum of Appeal, which are asFor that the learned Court below ought to have considered that as in the present case the deceased was not third party rather he was the son of the insured at the relevant time of accident who was driving the vehicle rashly and negligently, the insured cannot claim compensation until and unless negligence on the part of the insured is established and proved.D. For that the learned Court ought to have considered that Motor Vehicle Act provides provisions for compensation for the death of the third party from the insured vis-à-vis the insurance company but there is no provision in the Act wherein an insured may claim himself compensation fromThe High Court has also not expressed its opinion on the said issue.

Reasoning:
The provisions of the Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. 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 andis not a case where even Section 163-A of the Act was resorted to. Respondents filed an application under Section 166 of the Act. Only an act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two wheelers, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 of the Act, in our opinion, is notbecause driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and theUnited India Insurance Co. Ltd. v. Tilak Singh, [ (2006) 4 SCC 404  ] this Court considered the provisions of the Motor Vehicles Act, 1939 as also 1988 Act and inter alia opined that the insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance policy was a statutory policy which did not cover the gratuitousdo not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, [ (2007) 3 SCC 700  ] has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory policy and a contractual policy has clearly been made out.These decisions, clearly, are applicable to the fact of the present case.