In the claim petition it is stated that on 3.12.1998 at about 00.30 hours while one Sivaperumal was riding his Yamaha two wheeler bearing Registration No.TN-23-B-9403 towards Vellore, it was skid, he fell down and he died on the spot. A case was registered in Cr.No.469 of 1998 under Section 279, 338 and 304(A) I.P.C. First claimant is wife of the deceased and the second claimant is mother. Hence, a sum of Rs.50,000/- is claimed as compensation on the principle of no fault liability.
2. In the counter it is stated that the petition is not maintainable. There is no privity of contract between this respondent and the claimants. The deceased risk is not covered in the policy. As per the policy conditions, if the driver-cum-owner drove the vehicle involved in the accident is not entitled to compensation. He himself rode the vehicle. Only if comprehensive policy was taken the claimant could claim the compensation. Hence the petition is not maintainable under
Section 140 of the Motor Vehicles Act. The petition has to be dismissed.
3. The Tribunal has analysed the evidence on record and passed award directing this appellant to pay Rs.50,000/- along with interests under no fault liability principle. The Appellant is before this Court challenging the above said findings of the Tribunal.
4. The owner himself rode the motor cycle at the time of accident. It is the main stress of the learned counsel for the appellant that the Insurance Company would indemnify the owner for satisfying the liability to the third party and if the owner himself droves the vehicle and caused accident the Insurance Company could not be held liable to indemnify. In support of his contention, he relied upon a decision of the Honourable Supreme Court in 2004 AIR SCW 5438 [Dhanraj v. New India Assurance Co. Ltd., and another] wherein Their Lordships while discussing the scope of Section 147 of Motor Vehicles Act held that Insurance Company is not liable to compensate the owner of the vehicle for death or fatally injured as per section 147 of the M.V. Act. The operative portion goes thus:
"7. Thus, an insurance policy covers the liability incurred by the insured in respect of death or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
8. In the case of Oriental Insurance Co. Ltd., v. Sunita Rathi & Ors. [1998 ACJ 121] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e., an owner of the vehicle has no liability to a third party the Insurance Company has no liability also."
5. Following the principles laid down in the above said decision, it has to be held that since the deceased being the owner, who rode the motor cycle at the time of accident, caused accident by his own negligence, invited the trouble, the Insurance Company is not liable to pay compensation to the claimants. In such view of the matter, the award passed by the Tribunal deserves to be set aside and accordingly set aside.
6. In fine, the Civil Miscellaneous Appeal is allowed. No costs. The appellant is permitted to withdraw the deposit amount.
ggs To The Additional District Judge cum Chief Judicial Magistrate, Motor Accident Claims Tribunal, Vellore