1. By way of this appeal, the appellant has challenged the judgement and award dated 03.12.2008 passed by the Motor Accident Claims Tribunal (Aux.) Anand in Motor Accident Claims Petition No. 249 of 2006 whereby the Tribunal awarded an amount of Rs. 25,000/- alongwith interest at the rate of 9% per annum from the date of application till realisation.
2. The respondent no. 1 herein-original claimant had filed aforesaid claim petition under Section 140 of the M.V. Act for compensation in respect of a vehicular accident which occurred when he was riding a motorcycle bearing registration no. GJ-23D-6190. The motorcycle skidded on the road and the claimant therefore sustained injuries. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Shalin Mehta, learned advocate appearing for the appellant submitted that the Tribunal committed an error in not exonerating the insurance company. He submitted that the claim petition filed by the owner of the offending vehicle for third party compensation was not maintainable at law. Mr. Mehta has relied upon a decision of the Apex Court in the case of Yallwwa (smt.) and Others vs. National Insurance Co. Ltd. and Another reported in 2007(6) SCC 657.
4. The Apex Court in the case of Yallwwa(supra) has held that Section 140 makes the owner liable but not the insurer per se and that when a statutory liability has been imposed on the owner the same cannot extend the liability of the insurer to indemnfiy the owner although in terms of the insurance policy or under the Act, the insurer is not liable therefore.
5. It is clear that the primary liability for payment of interim compensation under Section 140 of the M.V. Act, 1988 rests with the owner. In the present case, the owner of the offending vehicle was not a third party. Only third party could have sought interim compensation under Section 140. The owner of the offending vehicle has claimed compensation against himself in the present case which is not permissible as the insurance policy does not provide a third party cover for owner-cum-driver. The Tribunal has therefore committed an error in directing the insurance company to make payment of compensation.
6. In the premises aforesaid, appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant. The amount deposited by the insurance company shall be refunded. The award of the Tribunal is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//