IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
FAO No.712/2009(O&M)
Date of Decision:10/2/2009
The Oriental Insurance Company Limited.
..........Appellant
Versus
Smt.Asha Devi widow and others.
..........Respondents
CORAM: HON’BLE MR.JUSTICE JASWANT SINGH.
Present: Mr. Amit Rawal,Advocate for the appellant-Insurance Company.
JASWANT SINGH,J
C.M.No.3099-CII/2009.
C.M. allowed. Photocopy of Insurance Policy in respect of ill
fated motorcycle is taken on record.
FAO No.712/2009.
Appellant Insurance Company has filed this appeal against the
award dated 7.11.2008 passed by the learned Motor Accident Claims
Tribunal, Fatehgarh Sahib (for short the Tribunal), whereby the claim petition
filed by respondents-claimants under Section 163-A of the Motor Vehicles
Act,1988 (for short the Act) was allowed, and they were held entitled to
compensation of Rs.3,36,000/- (Rupees three lacs thirty six thousand only) on
account of death of deceased Puran Chand besides Rs.9500/- towards the
funeral expenses, in a motor vehicular accident that took place on 15.5.2007.
The appellant being the insurer of the ill fated motorcycle was held liable to
FAO No.712/2009(O&M) 2
pay the compensation. Hence the present appeal.
It has been contended by the learned counsel for the appellant that
under Section 147 of the Act, the Insurance Company is liable to pay
compensation only in respect of damage to the property/bodily injuries caused
to the third party, but in the present case the deceased was not a third party and
at the time of accident he himself was driving the motorcycle, therefore, the
learned Tribunal has wrongly fastened the liability upon the appellant
Company.
The further ground on which challenge has been laid to the award
is that the FIR was registered against unknown vehicle and thus a false claim
has been set up just to get compensation.
After hearing the learned counsel for the appellant-Insurance
Company and perusing the record, I do not find any merit in these submissions
and the same are rejected.
Vide order dated 31.1.2009, the appellant Insurance Company was
directed to place on record a copy of the insurance policy obtained by the
deceased in respect of motorcycle in question.
In compliance with the aforesaid directions photocopy of the
insurance policy filed by the appellant Insurance Company has been taken on
record vide order of even date recorded in the beginning of this order.
A perusal of the break-up of “Schedule of Premium” given in the
said policy shows that Rs.50/- were paid by the deceased insured towards
Personal Accident (PA). Once the Insurance Company has accepted and
FAO No.712/2009(O&M) 3
received the premium under the head “Personal Accident”, it cannot be
permitted to take shelter of Section 147 of the Act. Reliance in this regard can
be placed upon Sunita Lokhande and others v. New India Assurance
Co.Ltd. And others, 2008(3)R.C.R.(Civil) 727, whereby a Full Bench of
Madhya Pradesh High Court (Jabalpur Bench), upon a reference made by a
Division Bench of that Court, after considering the law laid down by the
Hon’ble Supreme Court in Dhanraj V.New India Assurance Company
Ltd.,2004 AIR SCW 5438 and Oriental Insurance Company Ltd. v. Jhuma
Saha, 2007 ACJ 818, held that the owner cannot claim compensation in
respect of an injury or death suffered by him in a motor accident, unless
additional premium in respect of such personal injury or death has been taken
by way of special insurance contract. Thus, in the present case the appellant
Insurance Company having accepted the premium for “Personal Accident”
cannot escape its liability.
Regarding the second and the last submission that FIR was
registered against unknown vehicle, Smt.Asha Devi, respondent no.1-
claimant,who is widow of the deceased Puran Chand appeared in the witness
box and deposed that at the time of accident she was going in a three wheeler
to the temple of Mata Sati near Floating Restaurant Sirhind (place of accident)
when the accident took place and she had seen the whole occurrence. Though
the appellant-respondent Insurance Company had seriously contested the
ocular version of Smt.Asha Devi, the learned Tribunal found that the fact
regarding the death of deceased Puran Chand in a road side accident stands
FAO No.712/2009(O&M) 4
proved from her statement read together with the FIR that an unknown vehicle
had hit the motorcycle of the deceased from behind, resulting into his death at
the spot. Since the claimants had filed the petition under Section 163-A of the
Act, the fact as to whether the accident took place due to negligence of some
other vehicle or of the vehicle of the deceased, loses significance.
No other point has been raised.
For the reasons stated above,finding no merit in this appeal the
same is hereby dismissed in limine.
10.2.2009. (Jaswant Singh) joshi Judge