Form No. J(2)

Bm/cm District: Nadia IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present :

The Hon’ble Justice Ananya Bandyopadhyay FMA 1447 of 2014 THE NEW INDIA ASSURANCE CO. LTD.

VS.

TUNI SARKAR & ORS C & C R Mr. Parimal Kumar Pahari … for the appellant/Insurance Company Mr. Amit Ranjan Roy … for the respondent Nos. 1 to 4/claimants Heard on & Judgment on : 11.06.2024 Ananya Bandyopadhyay J.

1. The Learned Advocates representing both the parties are present.

2. The instant appeal had been filed against judgment and order 27^th July, 2007 passed by the learned Judge, Motor Accident Claims Tribunal cum Additional District Judge, 4^th Court, Nadia, Krishnagar in M.A.C. Case No. 31 of 2005.

3. An application under Section 163A of the Motor Vehicle Act, had been filed by the claimants on account of death of the victim in an accident which occurred on 29.10.20004 at N.H 34 at Bistunagar Dhal at about 14.30 hours with the involvement of the offending vehicle being a bus bearing registration No. WB-51/3126 which had proceeded at an excessive speed on its route. The victim boarded the bus on top of it as a “roof top passenger.” The speed of the bus occasioned the victim to lose his balance and fall there from beyond his control resulting in his death on the spot.

4. The Learned Advocate representing the Appellant/Insurance Company submitted to have filed the instant appeal exclusively on the point of violation of terms and conditions of the insurance policy whereby the Appellant/Insurance Company was not liable to pay compensation to the claimants since the victim was a passenger on the roof top of the bus contrary to the definition of the phrase “third party”.

5. The Learned Advocate representing the respondent Nos. 1 to 4/claimants submitted that the provision under Section 147 of the Motor Vehicle Act enumerated the liability covered by the terms of the Insurance policy including the third party risk.

6. Learned Advocate representing the respondent Nos. 1 to 4/claimants relied upon on a decision of three Judges Bench reported in III(2005) ACC 559, Giriraj Prasad Agrawal & Ors. Vs.

Parwati Devi & Ors. And Kali Paharin

7. Considered the rival contention of the Learned Advocates representing both the parties, the three Judges Bench in Giriraj Prasad Agrawal(supra) had observed as follows :-

“12. Section 146 of the Act(old Section 94) makes the insurance of vehicle mandatory against third party risk. The object of Section 146 is to ensure insurance of all vehicles which are to be sued in public peace so that if a third party suffers any damage due to use of the said vehicle in public place, he would be able to get damage for the same straightaway from the Insurance Company. The statutory compulsion is made with a view to give benefit to a large number of persons who loss their lives in automobile accidents or who are injured and disabled as a result of such accident. The owner of the vehicle would not be able to meet the claims of the victims of the accident. It is with the above object that the compulsory insurance is made under the M.V. Act. The Insurance Companies are nationalized with a view to see that they toe the line of the directive principles of State policy under Article 39 of the Constitution of India and also fulfill the obligations under the M.V Act.

13. The expression ‘third party’ as defined in this Chapter means and includes everyone, be it a person traveling in another vehicle, one walking on the road or a passenger in the vehicle. Every insured takes out an Insurance policy against a third party risk only with the motive and purpose of covering the risk which may arise in relation to claim lodged against him by a third party. By agreeing to issue Insurance Policy, the insurer undertakes to insure the insured and indemnify him against all risks and in relation to all claims lodged against him by third parties.

14. Section 147 of the said Act deals with requirement of policies and limits of liability. Th