ORDER
Dipak Misra, J.
1. Defensibility and acceptability of the award dated 29-3-2006 passed by the Third Motor Accident Claims Tribunal, Tikamgarh (for short ‘the Tribunal’) in Claim Case No. 110/2005 is the subject matter of assail in this appeal preferred under Section 173 of the Motor Vehicles Act, 1988 (for brevity ‘the Act’).
2. The facts which are imperative to be exposited are that the legal representatives of the deceased, Baijnath initiated an action under Section 166 of the Act for grant of compensation for a sum of Rs. 12,70,390/- on the foundation that the said Baijnath who was working as an Assistant Grade-II in the Rural Engineering Services at Tikamgarh, met with a vehicular accident on 7-9-2003 while he was travelling on his motorcycle bearing registration No. 36-B-7318 and proceeding towards Lalitpur. He fell on the road as a result of which he sustained grievous injuries for which he availed treatment at a hospital at Gwalior and eventually he met his end on the same day. It was pleaded before the Tribunal that he was 45 years of age and his monthly income was Rs. 6,586/-. It was set forth that his contribution to the family was enormous and on that basis the amount, as indicated hereinbefore, was claimed before the Tribunal.
3. The Insurance Company which was made the sole opposite party combatted claim put forth by the legal representatives on the bedrock that the insurance policy did not cover the case of the owner as such a policy is not required to be issued in terms of the language employed under Section 147 of the Act. Additionally it was asserted that the owner of the motorcycle was himself responsible for the accident and, therefore, no compensation was payable.
4. The Tribunal framed as many as four issues and came to hold that the deceased died in the accident in the intervening night of 6-9-2003/7-9-2003 and he was negligent in causation of the accident; that there had been no breach of the terms and conditions of the policy; and that the deceased being the owner was not to be indemnified by the insurer.
5. Questioning the correctness and soundness of the award it is submitted by Mr. Rajneesh Patel, learned Counsel for the claimants-appellants that the Tribunal has erred in interpreting the terms of the policy and arrived at the conclusion that the insurance policy taken by the owner did not cover his own risk. It is his further proponement that Section 147 of the Act does not debar the insurer to accept the premium qua the personal risk of the owner and in that event the insurer would irrefragably be liable for grant of compensation to the legal representatives of the deceased, owner in case of death.
6. Mr. Anoop Nair, learned Counsel appearing for the respondent-insurer contended that the deceased being not a third party his legal representatives could not have been agitated their grievances before the Tribunal. It is his further submission that even if the policy, by acceptance of extra premium, covers the risk of the owner yet the claim as contemplated under Sections 165 and 166 of the Act would not be maintainable before the Tribunal and the real forum either would be the Civil Court or the Consumer Redressal Forum under the provisions of the Consumers Protection Act, 1984.
7. At the very outset we think it appropriate to state that when this matter was taken up, Mr. Rajneesh Patel, learned Counsel appearing for the appellants had submitted with immense emphasis that the policy covers the risk of the owner. As some doubts had cropped up in that regard Mr. Anoop Nair, learned Counsel appearing for the insurer was granted time to verify the terms and conditions of the policy and the premium paid thereon. Mr. Nair after containing instructions stated before this Court that the policy covers owner’s own risk but the insurer has the limited liability upto Rs. 1,00,000/-.
8. In view of the aforesaid the solitary question that remains to be adjudicated is whether the claim put forth before the Tribunal is maintainable and the legal representatives should be granted compensation under the said statute. Section 165 of occurring in Chapter XII of the Acts deals with Claims Tribunals. Mr. Anoop Nair, learned Counsel appearing for the insurer has invited our attention to Sub-section (1) of Section 165 of the Act. It reads as under:
165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constituted one or more Motor Accidents Claims Tribunal (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, bodily injury to, person arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation:- For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under Section 140 (and Section 163A).
9. Learned Counsel would submit that if the language enjoined in the said provision is read in an apposite manner it would reveal that the claims are to be adjudicated by the Tribunal in respect of the compensation pertaining to the accident involving the death or bodily injuries to a person or of a third party. It is urged by him that when the owner cannot be a third party the Tribunal would be bereft of jurisdiction to take up the matter. To bolster the aforesaid submission he has commended us to the decision rendered in the case of National Insurance Co. Ltd. v. Santosh Kumar , wherein a learned Single Judge lanceted the award passed by the Tribunal whereby it had entertained an application of an owner/insured in respect of damage of his own vehicle in the accident. Be it noted, to arrive at the said conclusion the learned Single Judge has placed reliance on a Division Bench decision of this Court rendered in the case of New India Assurance Co. Ltd. v. P.N. Vijaiwargiya and Ors. . The Division Bench has held in Paragraph 10 as under:
10. The claim for compensation in respect of accidents involving the death or bodily injury may relate to the insured and/or a third person. However, the claim for compensation involving damages to any property to be entertainable before the Claims Tribunal must relate to a third party only and not the insured. The proviso provides for an option lying with the claimant. Where claim for compensation in respect of damage to property exceeds rupees two thousand which would necessarily be of a third party (and not the insured), the claimant may have it adjudicated upon by the Claims Tribunal or may have it referred to a Civil Court for adjudication. Where the claim does not exceed rupees two thousand it has to be tried by the Claims Tribunal. Section 110F bars the jurisdiction of Civil Court where the claim is entertainable by a Claims Tribunal and a Claims Tribunal has been constituted for that area.
10. On a perusal of the aforesaid paragraph it is perceivable that the Division Bench has expressed the opinion that claim for compensation in respect of a case involving death or bodily injuries may relate to the insured or a third person. In this context we may refer with profit to the decision rendered in the case of Hemlata Sahu and Ors. v. Ramadhar and Anr. 1992 (2) MPLJ 231, wherein this Court speaking through Mr. A.K. Mathur, the learned Chief Justice (as His Lordship then was) has held thus:
Under the comprehensive insurance policy, the owner can only claim reimbursement of damages suffered by the vehicle. The Insurance Company only insures the liability arising out of the insured and it does not insure the insured. Though the policy was comprehensive policy, but it did not cover the insured and as per Section 147(1), it clearly transpires that a policy of insurance must be a policy which insures the person or class of person specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Where there was no evidence to show that any separate premium was paid for the purpose of covering risk of the owner himself, the Insurance Company was not liable to pay any compensation to the claimants of the deceased scooterist.
11. Recently in the case of Dhan Raj v. New India Assurance Co. Ltd. and Anr. , after referring to Section 147 of the Act in Paragraphs 8 to 10 the Apex Court has ruled thus:
8. 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 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.
9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, it has been held 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, i.e., an owner of the vehicle has no liability to a third party the Insurance Company has no liability also.
10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4989/- paid under the heading “Own damage” the words “premium on vehicle and non-electrical accessories” appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.
12. If the aforesaid decisions are appreciated in proper perspective it is clear as day that a claim for compensation for a bodily injury or a death of an insured can be entertained on the condition precedent that extra premium has been paid by the insurer. As has been indicated earlier the present policy covers the insured, albeit, to a limited extend. Submission of Mr. Nair, leaned Counsel for the insurer is that the policy that has been issued in favour of the insured/ owner is comparable or akin to that of Life Insurance Policy issued under the Life Insurance Corporation Act. It is urged by him that if the policy holder expires, the legal representatives cannot put forth a claim before the Motor Accident Claims Tribunal but have to knock at he doors of any other legal forum and the grievance is to be agitated before the Consumer Forum if the concept of service is attracted. The aforesaid analogy as put forth by Mr. Anoop Nair, learned Counsel for the insurer suffers from a fundamental fallacy. The policy issued under the Motor Vehicles Act, 1988 and under the policy issued under the Life Insurance Corporation Act relate to different and separate realms. Under Section 147 of the Act requirement of policy and limits of liability are provided. There is no prohibition that the insurer cannot issue a policy in favour of the insured. In the case of Dhanraj (supra), Their Lordships in no uncertain terms have held that the owner of a vehicle can only claim provided personal accident, insurance has been taken. Once the insurance policy a privity contract, covers the owner for his own risk, it is not against the statute. It is a statutory contract within the ambit and sweep of the Act. The owner can put forth a claim for his bodily injuries. If he can put forth his claim for bodily injuries, it is needless to emphasise the legal representatives, by a logical corollary, can put forth an application before the Motor Accident Claims Tribunal inasmuch as the policy is issued under the Act. The Division Bench in the case of P.N. Vijaiwargiya (supra), has also opined that a claim in respect of an accident involving death relating to insured is tenable before the Tribunal. Section 165 (1) of the Act uses the word ‘injury to a persons arising out of the use of motor vehicles’. Section 147 of the Act covers statutory liability though it does not extend to the owner of a vehicle. But, a significant one, an owner of the vehicle can put forth a claim in case it is specifically covered by the policy. In the case at hand, it is patent, personal insurance policy was taken by the owner to cover his own risk. The liability is limited to Rs. 1,00,000/-. We fail to fathom why the Accident Claims Tribunal cannot entertain the same and the legal representatives should be asked to approach any other legal forum. Thus, the issue of maintainability raised by Mr. Nair is not acceptable and we have no hesitation in repelling the same.
13. In the result, the appeal is allowed and it is directed that the claimants-appellants would be entitled to get a sum of Rs. 1,00,000/- (Rupees one lakh only) from the respondent with interest at the rate of 6% per annum from the date of presentation of the application before the Tribunal till the date of deposition of the amount before it. In the facts and circumstances of the case there shall be no order as to costs.