1.0 Mr. Mackwan, learned Advocate is not appearing for the claimants. His name is wrongly shown.
2.0 This appeal is directed against the judgement and award dated 05.08.2004 passed by the learned Motor Accident Claims Tribunal (Aux III), Kheda at Nadiad in Motor Accident Claim Petition No.89 of 2002 wherein the Tribunal has awarded a sum of Rs.1,64,500/ along with interest at 9% per annum from the date of application till realization.
3.0 On 27.011.2001 at about 2.30 noon, Rameshbhai Paulbhai Makwana Bhoi was driving his Hero Honda No.GJ7E1190. At that time an animal came across the road as a result of which the vehicle slipped and he sustained serious injuries and succumbed to the same. The legal heirs therefore filed the aforesaid claim petition for recovery of Rs.3,50,000/ under section 163A of the Act wherein the aforesaid award came to be filed.
4.0 Learned Advocate for the appellant submitted that the Insurance Company has entered into a contract for indemnifying the insured against any liability that may be incurred by him qua third parties. He submitted that is the only liability which is covered under the policy and that is the only purpose for which the policy in question is issued under the provisions of the Motor Vehicles Act. According to him, primarily the liability has to be of the owner of the vehicle and only after the owner is liable, can there arise any question of the appellant being held liable. He submitted that the deceased himself was the owner of the vehicle and hence for his own negligence there could not arise any question of the appellant being liable to satisfy the award.
5.0 As a result of hearing and perusal of the record certain aspects are not in dispute. The accident in question has occurred when the deceased traveling on his motor cycle. He was the owner of the motor cycle. Therefore the only question to be considered is whether the policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the act reads as under:
“147. Requirements of policies and limits of liability – (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which –
[a] is issued by a person who is an authorized insurer; and
[b] insures the person or classes of persons specified in the policy to the extent specified in subsection (2) –
[i] against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized 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 in a public place.”
6.0 Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized 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.
7.0 In the case of Oriental Insurance Co. Ltd. V. Sunita Rathi, 1998 ACJ 121 (SC) 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. Similar principle has been laid down in the case of Oriental Insurance Co. Ltd. V. K.C. Arunakumara reported in 2005 ACJ 1.
8.0 In the present case the claimants have failed to show that the policy covered any risk for injury to the owner himself. There is also nothing to show on record that premium was paid under the heading “own damage” for covering liability towards personal injury. It is therefore clear that an owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case learned Advocate for the claimant is unable to show such insurance. Resultantly the Tribunal has committed an error in saddling the Insurance Company.
9.0 In the premises aforesaid the impugned judgement and award qua Insurance Company is quashed and set aside. The amount, if paid by the Insurance Company, shall be returned to Insurance Company. Appeal is allowed accordingly with no order as to costs.
(K.S. JHAVERI, J.) niru*