Hon'ble Shri Narayan Shukla, J.
(Per: Tarun Agarwala,J.) The owner Sri Pravendra Singh was driving his vehicle "Tata Sumo" and collided with a tractor, on account of which, he suffered injuries and subsequently died. The dependants of the deceased, Pravendra Singh, filed a claim application claiming compensation of Rs.22,36,768/-. The Tribunal gave an award allowing the claim application awarding Rs.6,60,000/- along with interest @ 6.5% per annum as compensation to the claimants. The Insurance Company of the vehicle TATA SUMO, being aggrieved by the said award, has filed the present appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as the "Act").
Heard Sri Saral Srivastava, the learned counsel for the appellant and Sri S.C.Kesarwani, the learned counsel for the claimants.
The learned counsel for the appellant has attacked the award on three grounds, namely:-
1.That the deceased was the owner and driving the vehicle and was not personally insured under the policy and, therefore, his dependants were not entitled for any compensation. In support of his submission, the learned counsel placed reliance on a decision of the Supreme Court in Oriental Insurance Company Ltd. vs. Rajni Devi and others, 2008 (2)T.A.C. 752(S.C.) as well as the decision of the Supreme Court in New India Assurance Company Ltd.vs. Meera Bai and others, 2006(9)SCC 174.
2.The claim application was filed under Section 163-A of the Act showing an income of the deceased at Rs.1,21,094/- which was more than Rs.40,000/- per annum and, therefore, the claim application was not maintainable in view of the decision of the Supreme Court in Deepal Girishbhai Soni and others vs. United India Insurance Co. Ltd., 2004 (5) SCC 385.
3.The compensation has been awarded without any proof of income of the deceased being filed by the claimants and, accordingly, notional income of Rs.15,000/- per annum could have been awarded.
On the other hand, the learned counsel for the claimant contended that a comprehensive policy was taken of the vehicle in question, in which the deceased was also insured and, consequently, the Insurance Company was liable to pay the compensation. In support of his contention the learned counsel placed reliance upon a decision in Chimaji Rao Shirke and another vs. Oriental Fire and General Insurance Company Ltd., 2000 (3) TAC 585 wherein the Supreme Court held, that the Insurance Company was liable to pay compensation to the heirs on the death of the owner who was driving the vehicle.
The learned counsel further submitted that necessary proof of the income of the deceased was filed before the Tribunal by way of filing the Income Tax return of the deceased, which was duly considered and accepted by the Tribunal and, therefore, the contention of the appellant that no proof of income of the deceased was filed, was patently erroneous. It was also contended that initially the claim application was filed under Section 163-A of the Act, but, subsequently, an amendment application was filed, which was allowed by the Tribunal by an order dated 6.8.2007 and thereafter the appeal was converted as having been filed under Section 166 of the Act. The learned counsel contended that the contention of the appellant that the claim application was not maintainable, was wholly erroneous and against the record.
Having heard the learned counsel for the parties, we find that the claim application was maintainable, inasmuch as, the claim application was converted from Section 163-A to Section 166 of the Act. Further, proof of income of the deceased was filed by filing the Income Tax return of the deceased, which was duly accepted. The contention of the appellant on these two issues is patently misconceived and is rejected.
Admittedly, the owner was driving his own vehicle, when it met with an accident. The question is, whether the insurance policy covered the personal insurance of the owner or not. In this regard the cover note and the insurance policy has been filed before the Tribunal as well as before this Court.
Upon its perusal, the Court finds that the policy was given in the name of the insured Sri Pravendra Singh Yadav, who was the owner of the "Tata Sumo" and who died in the accident. The insurance policy indicates that any person including the insured was entitled to drive the vehicle. Under the heading "Liability" we find that a premium of Rs.15/- was paid towards "legal liability to paid driver as per Endt. IMT 19".
The question is, whether the word "driver" would include owner of the vehicle or not.
Section 2(9) of the Motor Vehicles Act defines "driver" as under:
"2(9). "driver" includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;"
A perusal of the aforesaid provision indicates that any person, who is behind the steering wheel is a driver and, consequently, we are of the opinion, that the owner of the vehicle who is behind the steering wheel of the vehicle would also be a driver.
The learned counsel for the appellant has relied upon the decision of Rajni Devi (supra). We are of the opinion, that the said decision has no application as in that case a claim was made by the claimants of the deceased/owner, on the ground, that the policy covered the personal insurance. The Supreme Court held, that the premium paid under the heading "own damage" was to cover the damage occurred to a vehicle and not for injury to a person or the owner. The Supreme Court held, that the owner of the vehicle can only claim compensation provided the personal accident insurance had been taken out, which in the said case had not been done.
The Supreme Court, in Meera Bai's case(supra) held, that the insurance policy does not cover the risk to the driver of the vehicle in view of the insurance policy, which indicated liability to paid driver and/or conductor and, in that scenario, the Supreme Court held, that the owner, who was driving the vehicle, was not covered under the policy. The said case in our humble view is distinguishable for the following reasons.
Section 2(9) of the Act defines driver, which in our view encompasses the owner also to be the person who is behind the steering wheel and driving the vehicle. The cover note of the insurance policy in the instant case includes the insured and any other person, who is entitled to drive. The words used in the insurance policy are as under:
"Persons or classes of persons entitled to drive Any person including insured:"
The premium of Rs.15/- was paid for driver. Nothing has been indicated in the appeal nor has anything been addressed by the learned counsel for the appellant to the effect that personal insurance of the owner of the vehicle under the comprehensive policy could invite a different premium other than that premium paid for the driver. In the absence of any such pleading, we are of the opinion, that the comprehensive policy in the instance case also covered the personal insurance of the owner of the vehicle.
Consequently, we do not find any error in the order of the Tribunal. The appeal fails and is dismissed.
In the circumstances of the case parties shall bear their own cost.
Dated:17.10.2014.
AKJ.
(Shri Narayan Shukla, J.) (Tarun Agarwala, J.)