Order on Board

01.04.2024

1) This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short MV Act) has been filed by the appellant/insurance company, being aggrieved by the award dated 24.12.2016 passed by the learned Motor Accident Claims Tribunal, District- Jashpur, (C.G.)

in Claim Case No. 103/2015.

2) By the impugned award, the learned Tribunal has awarded compensation to the tune of Rs. 05,20,600/- in favour of the respondents/claimants on account of the death of the deceased/Khageshwar Ram holding the insurance company to pay the compensation.

3) As per the claim application, on 01.03.2015 the deceased/Khageshwar Ram was driving the offending vehicle bearing registration No. CG.15-CU-7309 while driving he met with an accident by unidentified vehicle and sustained severe injuries and died on the spot.

4) At the time of the accident, deceased/Khageshwar Ram was aged about 50 years and was earning Rs. 40,000/- yearly, therefore, an application under Section 166 of the Act, 1988 was filed. The respondents/claimants is dependent upon the income of the deceased, compensation of Rs. 05,20,600/- was claimed along with interest.

5) The claim application was resisted by appellant/insurance company on various grounds and stating that the claim application is not maintainable as the deceased was the owner of the offending vehicle and was not a third party.

6) The Learned Tribunal framed 4 issues and decided the same in favour of the respondents/claimants and awarded above stated compensation.

7) Mr. Tessy Abraham, learned counsel for the appellant/insurance company submits that the deceased/Khageshwar Ram was himself owner of the offending vehicle and therefore he cannot be treated as a third party. He further submits that though Rs. 50/- was charged for P.A. coverage of the deceased for covering the risk of Rs. 1,00,000/- however, the learned Tribunal has awarded above stated compensation. Therefore, he submits that the impugned award may be set aside and the insurance company may be exonerated from the payment to compensation. To buttress his submissions, he placed reliance upon the judgments of the Hon’ble Supreme Court in the cases of Oriental Insurance Company Ltd. Vs. Jhuma Saha (Smt) and Ors; (2007) 9 SCC 263, National Insurance Company Ltd. Vs. Ashalata Bhowmik and Ors; (2018) 9 SCC 801; Oriental Insurance Company Ltd.

Vs. Rajni Devi and Ors; (2008) 5 SCC 736.

8) Mr. Divyanand Patel, learned counsel for the respondents supports the award and submits that since the premium was charged for covering the risk of the deceased, compensation has been rightly been awarded by the learned Tribunal.

9) I have heard the learned counsel for the parties and considered their rival submissions and also perused the record.

10) In order to appreciate the controversy involved in this case, it would be appropriate to quote the Judgment of Hon’ble Supreme Court in the case of Jhuma Saha (supra) is dealing in the application filed under Section 166 in paragraph Nos. 10 to 13 are observed as under:-

Para 10 - “The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable. “

Para 11 - “Liability of the insurer-Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of

Motor Vehicle Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.”

Para 12 - In Dhanraj v. New India Assurance Co. Ltd. & Anr., [2004] 8 SCC 553, it is stated as follows :

"8. thus, an insurance policy covers the liability in