JUDGMENT :

(Ilesh J. Vora, J.)

1. Being dissatisfied with the fastening of the liability to pay the amount of compensation awarded by the Mehsana, MACT (Aux.), the Oriental Insurance Company Limited has filed the present appeal, to set aside the findings so far liability part is concerned.

2. On 23.10.2003 the claimant Arun Shambhubhai along with his brother Ashok Shambhubhai, met with an accident, as a result of which being a pillion of Suzuki bike, he sustained fracture injuries resulting into permanent disablement. The claim Tribunal, Mehsana (MACP No.1380 of 2003), after considering the oral as well as documentary evidence by allowing claim petition, awarded the amount of compensation of Rs.64,900/- with interest at the rate of 7.5% and the appellant Insurance Company was directed to pay the amount of compensation. The appellant Insurance Company had raised the technical issue of liability, inter alia stating that the applicant being owner of the vehicle cannot claim any amount of compensation against his Insurance Company. The learned Tribunal did not consider the defence set up by the Insurance Company and directed to pay the amount of compensation to the claimant.

3. In the aforesaid facts, the Insurance Company of the bike, i.e. the Oriental Insurance Company Limited has preferred appeal under section 173 of the MOTOR VEHICLES ACT .

4. This Court has heard learned counsel Mr. Maulik Shelat and Mr. R.V. Soni for the respective parties.

5. The parties to this appeal is referred to as per their ranks in the claim petition for the sake of convenience.

6. The factum of accident and involvement of the vehicle is not in dispute. The injured claimant is owner of the involved vehicle, insured with the appellant Insurance Company.

7. Mr. Maulik Shelat, learned counsel appearing for the Insurance Company would urge that the Tribunal was not justified in directing the appellant/insurer to pay the compensation, as the Insurance policy covers the liability incurred by the company in respect of death or bodily injury to third party and, therefore, he submitted that when the insured himself is claimant, the claim petition is not maintainable. He would further urge that when the liability arises between the parties by virtue of contract and in case of breach of contract, party to the contract can avail remedy is either before the competent civil Court or before the competent consumer forum but he cannot maintain the claim petition before the claim Tribunal constituted under the MOTOR VEHICLES ACT .

8. In nutshell, it is the submission for and on behalf of the Insurance Company that the Insurance Company cannot be made liable as per the terms and contract of the policy so far insured i.e. the owner of the vehicle is concerned.

9. The next contention of the Insurance Company is that the Insurance Company is liable to make payment of compensation for the nature of injury stated in the personal accident clause of the policy only, as in the present case, based on the premium paid for the personal accident, covering the risk of Rs.100,000/- the claimant insured had sought compensation for which the Tribunal should have taken into account the nature of injury stated in the policy only and, therefore, in the present case, when the injuries do not fall under any clause of the personal accident policy, the Tribunal has no jurisdiction to award the amount of compensation.

10. In view of the aforesaid contention, learned counsel Mr. Shelat submitted that the judgement and award is contrary to the provision of the law and is not sustainable in law and the same deserves to be set aside.

11. On the other hand, co