IMPORTANT POINT
The insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. This appeal is directed against a judgment and order dated 18th January, 2007 passed by a Division Bench of the High Court of Jharkhand at Ranchi whereby and whereunder an appeal preferred by the appellant herein under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) from a judgment and award dated 26th March, 2004 passed by the District Judge-cum-Motor Vehicle Accident Claim Tribunal at Seraikella was dismissed.

3. The admitted fact of the mater is as under :-

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, stating :-

“5. That 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.”

5. In view of the aforementioned pleadings of the parties, issues were framed in the following terms :-

“1. Whether 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 by them?”

6. The Tribunal did not enter into the question involved herein. However, while determining issue Nos.2 and 3 it was held :-

“So the evidence led on