The main legal point established in the judgment is the distinction between statutory and contractual liability under the Motor Vehicles Act, and the interpretation of coverage under a comprehensive insurance policy.

1. Heard. Admit. With the consent of the parties, the appeal is taken up for final disposal at admission stage.

2. Can legal heirs of a driver, who was brother of the owner and who met with an accidental death without involvement of any other vehicle would be entitled for compensation from the Insurance Company under comprehensive policy? is the question raised in this appeal. The facts are not very much in dispute.

3. Deceased-Bhaskar is brother of original respondent No. 1 – Nandkishor, who was owner of Maruti Car bearing No. MH20/H1545. On 29.04.2006, both the brothers along with their wives were returning from Tuljapur to Hingoli in the car. The deceased was driving the car while the owner was sitting by the side. Claimant No. 1 wife of the deceased was also in the car. When they reached about 18 kms. away from Tuljapur, it is claimed that there was sudden puncture of the back wheel. Thereafter, the car turned turtle and deceased Bhaskar sustained injuries to head. As a result thereof, he died on the spot. The accident was reported by the brother of the deceased respondent No. 1 – Nandkishor at the concerned Police Station. Some of the contents of the FIR were alleged to be stated under misconception and were not correct. There was no rashness and negligence on the part of the deceased he was holding valid driving license. He tried to save the life of all inmates in the car, still the car turtled. It is claimed that, the deceased was aged 43 years at the time of accident and was serving as SDO, Minor Irrigation, Zilla Parishad, Hingoli and was drawing salary of Rs. 19,631/-. There were five dependents on the deceased, out of which the parents (claimants No. 4 and 5) have died during the pendency of this appeal. The claimants claimed compensation of Rs. 23,00,000/-.

4. Respondent No. 1 admitted that he was owner of the car and the car was duly insured with respondent No. 2. He admitted that, deceased Bhaskar (his brother) was having valid driving license and he was driving the car for domestic use. He was not a paid driver. He denied that, there was no negligence on the part of the deceased in driving the car which turtled due to bursting of tyre.

5. The appellant – respondent No. 2 in the trial Court by reply at Exh.15 denied material facts for want of knowledge and admitted that the accident had taken place as per the police record. The age and income of the deceased and other details were denied. It is claimed that the deceased was not holding valid driving license and the incident had taken place due to own negligent act of the deceased and, therefore, they are not entitled for the compensation. The issues were framed at Exh.16. The claimants examined claimant No. 1 – Manjusha, CW2 Umesh Inamdar an employee to prove the salary certificate (Exh. 39). The driving license of the deceased is produced. There is no dispute that the deceased was aged 43 years and was earning salary of Rs. 19,631/-. Besides, his salary was increased due to 6th pay commission and was raised to Rs. 25,443/-. The ld. Trial Judge did not apply his mind to the main issue about the liability of the Insurance Company in such matter. He calculated the damages at Rs. 25,82,000/- with interest of 8% p.a. and held the Insurance Company jointly and severally liable to pay the compensation as determined.

6. Shri. S.S. Rathi, learned counsel for the appellant argued that, the deceased himself was driving the vehicle. No other vehicle was involved. He was tortfeasor. He cannot claim to be a third party and, therefore, his legal heirs were not entitled for compensation u/s 166 of the Motor Vehicles Act. In this regard, he relied on number of rulings.

7. Per contra, Shri. V.P. Golewar, learned counsel for respondents No. 1 to 4 submitted that, the deceased was not at fault and the policy was comprehensive policy. Separate premium was taken for owner cum driver and the Insurance Company would be responsible to pay the damages when the accident has occurred f