The deceased driver was not covered under the insurance policy as a 'third party' or 'victim' u/s 163-A, and the insurance company was not liable to indemnify the owner for the death of the driver.

JUDGMENT :

Roshan Dalvi, J.

1. The appellant, which is an insurance company, has challenged the judgment dated 16.6.2006 of the Member of M.A.C.T., Thane, granting compensation of Rs. 4,12,500 to respondent No. 1 herein with interest thereon at 6 per cent per annum along with costs and directing investment of a part of the amount.

2. The order of compensation came to be passed in an application of respondent No. 1 who was the mother of the deceased driver of a motor cycle against her husband, who was the owner of the motor cycle and against the appellant insurance company on the ground that the husband was bound to compensate the wife for the death of her son, the victim of the accident and that the liability had to be indemnified by the appellant insurance company since the vehicle was insured with them. The accident took place on 28.6.2004. The deceased is stated to have been earning a gross sum of Rs. 4,000 p.m. out of which Rs. 3,000 was shown to be by way of his salary and Rs. 1,000 by way of specified petrol allowance, which he earned upon supervising his father's business and for which the firm of his father issued the certificate. Deceased was 24 years old at the time of his death. The mother's application was made u/s 163-A of the Motor Vehicles Act (hereinafter referred to as 'the M.V. Act').

3. Insurance company has necessarily challenged the judgment on the ground that the deceased who was driving the motor cycle was not a 'third party' within the meaning of the Act or under the insurance policy which constitutes a contract between the insurance company and the insured, his father. It is also their contention that the deceased was not a 'victim' u/s 163-A of the Act or 'any person' u/s 147 of the M.V. Act.

4. The other contention of the appellant insurance company is that the deceased himself was a tortfeasor and hence, he cannot be termed as a 'victim' u/s 163-A of the M.V. Act. It is also their contention that the applicant earned more than Rs. 40,000 per annum and hence, claim u/s 163-A is not maintainable.

5. Learned Judge has considered each of these aspects as separate issues. He has considered various judgments and held that the claim u/s 163-A was maintainable whether or not the deceased was a tortfeasor and because the deceased earned less than Rs. 40,000 per annum. He has also held that the deceased was a 'third party' within the meaning of M.V. Act and 'any person' u/s 147(1)(b)(i) of the M.V. Act as well as a 'victim' u/s 163-A of the M.V. Act.

6. It would first have to be decided whether the deceased fell within the aforesaid terms and if so, whether the claim u/s 163-A could be legitimately made, without considering his tortious liability and upon considering his annual income.

7. The contract of insurance covered the owner-driver (the father of the deceased), the pillion passenger and the mandatory-third party risk. Despite a clause in that behalf, it did not cover 'other named person' or paid driver. The deceased was the son of the owner of the motor cycle and at the relevant time was not covered under the policy. The claim u/s 163-A of the M.V. Act has been made on the premise that the deceased was a 'victim' and a 'third party'. We must, therefore, see under which clause of the policy or provision of the M.V. Act the driver of the motor cycle, who was not covered under an express clause of the policy could be covered as a third party or a victim.

8. Section II of the insurance policy deals with liability to third parties. Under that section the insurance company agreed to indemnify the insured in the event of an accident arising out of the insured vehicle against all the sums which the insured would become legally liable to pay in respect of death or bodily injury to 'any person' including occupants carried in the insured vehicle. This liability is u/s 147 of the M.V. Act. Consequently, under that clause the insurance company agreed to indemnify any driver who drove the vehicle on the order of the insured