By way of filing this appeal, the appellant - insurance company has challenged the judgment and award dated 29th January 1997 passed by the learned Motor Accident Claims Tribunal, (Main), Vadodara in Motor Accident Claim Petition No.972 of 1986 whereby the Tribunal was pleased to award Rs.1,60,000 towards compensation to the claimants.
2 The short facts of the present case are that on the date of the incident, the claimant was travelling in Fiat Car bearing No.GUH 9995 and was coming from Surat to Anand. It is the case of the claimant that when said Car reached near the place of accident, it turned turtle and went into a ditch due to which he received serious injuries. The claimant therefore filed claim petition. The learned Tribunal vide its judgment and award awarded Rs.1,60,000/- to the claimants.
3 Feeling aggrieved by and dissatisfied with the judgment and award passed by the learned Motor Accident Claims Tribunal, (Main), Vadodara in Motor Accident Claim Petition No.972 of 1986, the appellant - insurance company has filed this appeal.
4 Learned counsel for the appellant has submitted that the Tribunal has committed an error in not considering that the insurance policy was in the name of one Sarvoday Sales Corporation where original claimant's son was partner and before the Tribunal they have joined one Natwarlal R Patel, who is another partner of the said firm. He has further contended that claimant and respondent No.2 herein are partners of the insured partnership firm and that risk of the partners being an owner of the vehicle is not required to be covered by the policy.
5 The insurance policy covers the liability incurred by the insured in respect of death or 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. In the case of Oriental Insurance Co.Ltd v. Sunita Rathi reported in (1998) 1 SCC 365 it has been held by the Apex Court that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured viz. the owner of the vehicle has no liability to a third party the insurance company has no liability also.
6 In the present case admittedly, son of the claimant, who was driving the Car at the relevant point of time, was partner of the partnership firm and in view of the provisions of Section 25 of the Partnership Act an act done by any partner is binding all the partners of the partnership firm. Further, the liability of the partner of firm cannot be fixed without joining the partnership firm. In the present case the original policy holder was not joined as a party. In my view, the Tribunal has committed an error in making the insurance company liable to pay the amount of compensation. I am of the opinion that the insurance company is required to be exonerated.
9 In view of what has been stated above, the appeal succeeds. However, it is clarified that if any amount has already been paid by the Insurance Company, it shall not be permissible for it to recover the same from the claimant. It is also clarified that if the claimant are entitled to recover the balance amount of compensation awarded to him, he can recover the same from the estate of the partnership firm. The amount lying in the FDR be returned to the insurance company.
(K.S.Jhaveri, J.) *mohd Top