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2003 Supreme(Cal) 441
High Court Of Calcutta
S. P. TALUKDAR, SAMARESH BANERJEE
DIPALI CHATTOPADHYAY - Appellant
Versus
NEW INDIA ASSURANCE CO.LTD. - Respondent
F. M. A. 25 Of 2002
Decided On : 08/29/2003
JYOTSNA ROY MUKHARJI, K.K.Das, KRISHANA BANIK
The insurance company is not liable to compensate the heirs of the insured owner of a vehicle who died in an accident involving his own vehicle unless the insurance policy covers personal accident insurance.
Headnote:
MOTOR VEHICLES ACT - Compensation - Insurance - Liability - Owner's Death - Liability of Insurance Company: The insurance company is not liable to compensate the heirs of the insured owner of a vehicle who died in an accident involving his own vehicle.
Fact of the Case:
The deceased, Shyamal Chattopadhyay, died in an accident while riding his own scooter, which was insured by New India Assurance Co. Ltd. The deceased's wife and son filed a claim for compensation under Section 163-A of the Motor Vehicles Act, 1988, but the claim was dismissed by the Claims Tribunal.
Finding of the Court:
The court held that the insurance company was not liable to compensate the deceased's heirs because the deceased was not a third party and the insurance policy did not cover personal accident insurance.
Issues: 1. Whether the insurance company is liable to compensate the heirs of the insured owner of a vehicle who died in an accident involving his own vehicle. 2. Whether the insurance policy in question covered personal accident insurance.
Ratio Decidendi: 1. The liability of the insurer depends on the terms of the contract between the insured and the insurer. 2. The insurance company is liable to compensate only the third party and not the insured. 3. The insurance policy in question did not cover personal accident insurance.
Final Decision: The appeal was dismissed, and there was no order as to costs.
( 1 ) THE present appeal is directed against the judgment dated 31. 8. 2001 passed by the learned Judge, m. A. C. Tribunal, 3rd Court, Burdwan, in m. A. C. C. Nos. 96 and 404 of 2000.
( 2 ) APPLICANTS before the learned tribunal, namely, Dipali Chattopadhyay and saugat Chattopadhyay filed an application under section 163-A of Motor Vehicles act, 1988 praying for compensation for the death of Shyamal Chattopadhyay. The applicants stated before the learned Claims tribunal in the said application that on 13. 10. 2000 the said Shyamal chattopadhyay, since deceased, was going on his own scooter bearing the No. BR 9a-0510 along G. T. Road and at about 1. 15 p. m. while it reached near Muchipara, Durgapur it dashed against a truck. As a result of the said accident, he died on the spot. New india Assurance Co. Ltd. is the concerned insurance company in respect of scooter bearing the No. BR 9a-0510 which was involved in the said accident. The victim, since deceased, was 55 years of age at the time of such accidental death. He was an employee of the Hindustan Fertilizer Co. The applicants are the wife and son of the deceased. The deceased was having an income of Rs. 6,490 per month. Referring to Second Schedule to Motor Vehicles Act, compensation of Rs. 2,30,000 was prayed for in the said application under section 163-A of the Motor Vehicles Act, 1988.
( 3 ) LEARNED Tribunal by its judgment dated 31. 8. 2001 dismissed the claim application by observing that "if the owner dies in an accident while using his own vehicle which has been insured by him, he does not acquire any right to get compensation from the insurance company. A personal accident insurance policy alone can cover this claim and the policy issued to the deceased not being a personal accident insurance policy, it does not cover such liability of the insurance company. The insurance company insures the liability of the insured and does not insure the insured".
( 4 ) REFERRING to the decision in the case of Om Parkash v. Rajbiri, 1997 ACJ 547 (Pandh), it was submitted by the learned counsel for the appellants that the vehicle involved in the accident was insured and not the owner of it. It was argued that the liability of insurer depends on terms of contract between insured and insurer. [ref. Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531 (SC)]. In this context reference was also made to the decision in the cases of National Insurance Co. Ltd. v. Deepa Pant, 1998 (2) TAG 648 (Allahabad) and National Insurance Co. Ltd. v. Mahadeb Kar, 1986 ACJ 362 (Calcutta ).
( 5 ) ON the other hand, it was submitted by the learned counsel for the respondent new India Assurance Co. Ltd. that insurance company cannot be held liable to compensate heirs of the insured. In this context reference was made to the decision in the case of Oriental Fire and Genl. Ins. Co. Ltd. v. Shakuntala Devi, 1991 ACJ 177 (Allahabad ). Referring to the decision in the case of United India Insurance Co. Ltd. v. Siddanna Nimbanna Jawali, 2001 acj 1774 (Karnataka), it was submitted that insured is not covered by the policy and third party cannot include the owner. The decision of the Supreme Court in the case of Minu B. Mehta v. Balkrishna ramchandra Nayan, 1977 ACJ 118 (SC), was followed therein. The unreported judgment of the Division Bench of this court presided over by Justice Aloke Chakrabarty in p. M. A. No. 112 of 2001 has been further referred to in support of the aforesaid legal position. It was categorically asserted that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. Learned counsel further added that liability of the insurance company is to compensate the insured towards the risk of the third party. [ref: National Insurance Co. Ltd. v. Sasilatha, 2000 ACJ 661 (Kerala) and United india Insurance Co. Ltd. v. Darshan Kaur, 2001 ACJ 998 (Pandh)].
( 6 ) IN the
