The central legal point established in the judgment is that the insurance company can be held liable for compensation in cases where the risk is covered under the insurance policy, even if the deceased is a third party and not the owner or driver of the insured vehicle.

Aruna Jagadeesan, J.

These Civil Miscellaneous Appeal and Cross Objection are filed by the Insurance Company and the claimants respectively against the Judgment and Decree dated 10.5.1996 made in MCOP.No.270/1995 by the learned I Additional District Judge Cum Chief Judicial Magistrate (MACT) Erode.

2. The Appellant Insurance Company is the Insurer of the Van bearing Reg.No.TAE-2050. By the impugned award, the Tribunal has awarded a compensation of Rs. 2,79,800/- with interest at 12 per cent p.a. for the death of one Chinnasamy, who died in the motor accident that had occurred on 17.6.1993, while he was travelling in the said van. As the van was driven by its driver in a rash and negligent manner, the driver of the van lost his control and the van fell into the ditch causing fatal injuries to the deceased. The wife, who is the 6th Respondent herein, is the owner of the vehicle and the claimants are the children and parents of the deceased. The claim petition was filed by the children and the parents of the deceased. The Tribunal, having found that the accident had occurred due to the rash and negligent driving of the van driver, has awarded compensation as stated above to the claimants.

3. The sole contention urged by Mr.K.S.Narasimhan, the learned counsel for the Appellant is that the Tribunal erred in law in making the Insurance Company liable for the award. His submission is that the deceased was not a third party and he being the husband of the insured and the claimants being their children and parents of the deceased, no liability could be fastened on the Appellant Insurance Company.

4. On the other hand, Mr.N.Manoharan, the learned counsel for the Respondents/claimants supported the impugned award and relied on the decision of the Division Bench of this court reported in 2009 2 TNMAC 53 DB (New India Assurance Company Limited v. K.Jothilangam and others) which was a case where the husband was the tortfeasor and the claim was made by his children claiming compensation. This court has held that since because the husband of the deceased being the tortfeasor, he cannot reward himself, however, the other claimants, who are the children of the deceased, are entitled to be compensated.

5. In this case, the deceased was travelling in the van and he was neither the owner of the van nor the driver. He was only a passenger of the van. It is relevant to state that except the Insured, all other would become third parties. However, merely because, the claim relates to the death of or bodily injury to a third party and the vehicle had valid insurance cover as on the date of the accident, the Insurer cannot be made liable for the award. Before making the Insurer liable for the award, the question that requires to be examined is as to whether the risk in question is compulsorily required to be covered under the Act or is factually covered under the Insurance Policy. If the risk is covered either under the Act or under the Policy, the Insurer will be made liable.

6. In this case, the Appellant Insurance Company has not filed the Policy and has not led in any evidence to show that the deceased was an unauthorized passenger. It is also not the case of the Appellant Insurance Company that the deceased was an unauthorized passenger. Therefore, it is to be presumed that the van involved in the accident had valid insurance cover as on the date of the accident. The Insurance Company has also not let in any statutory defence available under the Act to avoid liability. As already observed, the deceased was neither the owner of the van nor was the driving the van at the time of the accident. On the facts of the case, the deceased, who is the husband of the owner/insured, cannot be treated as the insured or his representative. Hence, he would become a third party and accordingly, I do not find any legal infirmity in the impugned award in making the Appellant Insurance Company liable for the award and therefore, the impugned award is liable to be