An insurance policy covering a vehicle does not create any liability of the Insurance Company to pay compensation to the owner of the vehicle in case of his death or injury arising out of the use of the vehicle unless the owner has taken a personal accident insurance coverage for himself.

Jayanta Kumar Biswas, J.

The Insurance Company is the appellant. It is aggrieved by an award of the Motor Accident Claims Tribunal, Durgapur dated 8th September, 2003 ordering it to pay Rs. 50,000 Section 140 compensation with 9% p.a. interest.

2. Notice of appeal was duly served on the claimants. Records reveal that they entered appearance through one Mr Subrata Bhattacharya, Advocate. The appeal was taken up for hearing Yesterday. Since Mr. Bhattacharya was absent, hearing was adjourned for giving the claimants another opportunity of contesting the appeal. For reasons known to him, Mr. Bhattacharya is absent today was well. We do not find any reason to adjourn the hearing again.

3. The parents and an unmarried sister of one Shib Shankar Ghosal filed an application before the Claims Tribunal under Section 140 of the Motor Vehicles Act, 1988 on 27th August, 2001. Their case was this:-

"Shib Shankar (26) was a businessman. His motorcycle No. WB-40E-4561 was covered by a valid policy issued by the Insurance Company. Riding the motorcycle he was coming from Bolpur towards Durgapur on 24th December, 2000 when a rashly and negligently driven truck coming from the opposite direction dashed the motorcycle. He was seriously injured in the accident and died in hospital."

4. The driver, the owner and the insurer of the truck were not impleaded as parties. The claimants prayed for leave to file an appropriate case claiming fault liability compensation. The Insurance Company contested the case by filing a written statement. It took the specific plea that since the policy did not cover the victims life qua the owner of the motorcycle, his death in the accident did not make it liable to pay his legal representatives any compensation.

5. In proof of the case the victim's mother (the first claimant) testified as PW1. Her testimony is that while the victim was returning home riding his motorcycle, a truck dashed him; and that he was killed in the accident. In cross-examination she said that she did not collect the number of the offending truck; and that because of that the owner and the insurer of the truck were not impleaded as parties to the case.

6. The Insurance Company examined an officer of it as OPW1. He produced the policy that was in force in relation to the use of the motorcycle. It was marked Ex A. OPW1 testified that under the policy the Insurance Company was not liable for the owner's death or injury. In cross-examination he said, "P.A. is included in item No. B." He, however, denied the suggestion that the claimants were entitled to claim the victim's personal accident coverage.

7. The Claims Tribunal held as follows:-

"I have already discussed it is not disputed in this case that there is an insurance of the vehicle. Therefore, the scope remains before the Insurance Company for raising any statutory defence or defences based on the policy at the time of filing award. This is the case under Section 140 of the M.V. Act. The question that arises in a case like this nature whether the insurer is liable to pay compensation-to the dependents of the deceased or not. Considering the scope given under Section 140 of the M.V. Act, I am in view the O.P. at this stage cannot challenge the coverage of the Policy which is produced on behalf of the petitioner."

8. Mr. Das appearing for the Insurance Company has submitted that since the policy did not cover a liability for the owner's personal accident, the Section 140 claim was just not maintainable. He has relied on Dhanraj v. New India Assurance Co. Ltd. & Am., 2005 A.C.J. 1, Oriental Insurance Co. Ltd. v. Jhuma Saha & Ors., 2007 A.C.J. 818 and New India Assurance Co. Ltd. v. Prabha Devi & Ors., 2013 A.C.J. 1382.

9. In Dhanraj the Supreme Court considered the decision in Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 A.C.J. 121 and said as follows:-

"9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 A.C.J. 121, it has been held that the liability of an Insurance Company is