JUDGMENT
Deepak Gupta, J.
1. The only point raised in this appeal is whether the insurance company is liable to cover the risk in case of injury/death of the insured himself in a motor accident.
2. The deceased Vijay Anand Bhatt was owner of truck No. UP 07-2436. The deceased was a transporter by profession. On 5.3.1994 he was coming from Sataun in the aforementioned truck. The said truck met with an accident resulting in the death of the deceased owner Vijay Anand Bhatt.
3. The widow, two minor children and parents of the deceased filed the claim petition for grant of compensation alleging that the accident in question had occurred due to rash and negligent driving of Dinesh Kumar, driver. The insurance company in its reply took up a specific plea that the company was not responsible since the liability to indemnify for death of the owner was not covered under the terms of the policy nor it required to be covered under the provisions of the Motor Vehicles Act. The relevant issue framed in this behalf reads thus:
“(3) Whether petition is not maintainable against insurance company as contended in preliminary objections?
OPR”
4. The learned Tribunal has held that since the truck was insured with respondent No. 1 and the said fact was not denied, therefore, the insurance company is liable to pay the compensation. The Tribunal has relied upon a judgment delivered by a single Judge of Punjab and Haryana High Court in the case of Kusum Sood v. United India Insurance Co. Ltd., . The relevant portion of this judgment reads as follows:
“(8) The position that emerges is that the taxi was driven by an authorised person who was an employee of the deceased and was having a valid licence. The taxi was duly insured with the insurance company. The only reason for absolving the liability of the insurance company was that the deceased was the occupant of his own car, which was being plied as a taxi. The law does not say that the owner of the vehicle is debarred from travelling in his own car. If some unfortunate event happens and the owner of the vehicle dies, his legal heirs cannot be denied the compensation for the simple reason that the deceased was travelling without hire/reward. The plea of the respondent that the deceased was travelling in his own car and as such was a gratuitous passenger does not appeal to logic especially in view of the fact that the deceased had invested money in the purchase of the car which was duly insured and the expenses on the consumption of the petrol were also borne by him. In view of this, I am of the view that he was indirectly paying for the running of the car. As such, it cannot be said that he was travelling in his car without any hire or reward.”
5. Mr. Ashwani Sharma, the learned counsel appearing on behalf of insurance company has contended that the aforementioned judgment does not lay down the correct law. He submits that as per the scheme of Motor Vehicles Act (hereinafter referred to as ‘the Act’), the insurance company is to indemnify the insured for the compensation payable by him. Therefore, the death or injury of the insured himself can never be covered under a policy issued under the Act. According to him there are separate policies which cover such risks. In the present case the policy only covers risks to third parties, goods, etc. but does not cover the risk to the owner of the vehicle.
6. Chapter XI of the Act deals with insurance of motor vehicles against third party risks. Section 146 of the Act makes it obligatory on the part of any person using a motor vehicle except as a passenger to ensure that there is a policy of insurance covering third party risk, complying with the requirements of the said chapter. This section debars an owner from using the vehicle till he has attained the policy fulfilling the requirements of this chapter. Section 147 of the Act deals with requirements of policies and limits of liability. Under Section 147 of the Act, a policy of insurance is required to cover risk against any liability which may be incurred by the owner in respect of death or bodily injury to any person including 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 in a public place. With regard to public service vehicles the policy is also required to cover risk or bodily injury to any passenger of such vehicle. The policy under the terms of the Act is also required to cover workmen’s compensation liability for the employees of the vehicle engaged in driving the vehicle or conductor of public service vehicle or other employees carried in a goods vehicle. These are the basic requirements of the policy, which in normal parlance is termed as the ‘Act policy’. Insurance company can undertake any other contractual liability and cover any other risk over and above the risks mentioned in Section 147 of the Act. Any policy issued by the insurance company has to at least comply with the provisions of Section 147. We are not concerned with the limits of the policies mentioned in Section 147 (2) of the Act. Section 149 of the Act enjoins upon the insurer to satisfy the judgments and awards against persons insured in respect of third party risks. Section 150 of the Act gives right to thyrd parties against insurers on insolvency of the insured.
7. The question, which is before this court, has been raised in earlier cases also. Madras High Court in a case titled United India Insurance Co. Ltd. v. Lakshmi, , dealing with the provisions of Section 95 of the Motor Vehicles Act, 1939, held as follows:
“(3) …As we could see from the expressions used in the section, it required a policy of insurance to cover any liability which may be incurred by the insured in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of use of the vehicle in a public place. There ought to have been a liability incurred by the insured to a third party. The terms of the policy of insurance issued, namely, Exh. P-l, being in accord with Section 95 (1) (b) (i) of the Act, the policy of insurance could cover only the liability of the insured to a third party. The purpose of the provision is to protect the interests of third parties who are involved in motor accidents. In order to fix liability on the insurance company, the liability must be first established against the insured. It is only in that case the liability of the insurance company would arise. The insurance company or the insurer is one party to the contract, the insured or the policyholder is another and the claims made by others in respect of negligent use of the vehicle would be claims by third parties. Thus, it is obvious that if any liability has not been incurred by the owner or the insured towards a third party, then that is not intended to be covered by the policy of insurance issued as per this provision. The language of the provision being what it is, plain in terms, the implications flowing therefrom are also plain and as such admit of no ambiguity. If there is no liability on the part of the owner of the vehicle or in other words the insured, nothing could be passed on to the insurance company to meet any such liability. The owner of the vehicle or in other words the insured must be first found to be liable to a third party, so that, that liability could be passed on to the insurance company.”
8. In Mathew Koshy v. Oriental Insurance Co. Ltd., 1989 ACJ 21 (Kerala), a Division Bench of Kerala High Court held as follows:
“A contract of insurance in the widest sense of the term may be defined as a contract whereby one person called the insurer’ undertakes in return for the agreed consideration called ‘premium’ to pay to another person called the ‘assured’ a sum of money or its equivalent on the happening of a specified event [See E.R. Hardy Ivamy: General Principles of Insurance Law, 4th Edn., p. 3]. A system of compulsory insurance was enacted by Road Traffic Act, 1930. The compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur. The purpose of the enactment, the Road Traffic Act and making the insurance compulsory, is to protect the interest of the successful claimant from being defeated by the owner of the vehicle. Section 95 (1) (b) (i) of the Act says that the policy of the insurance must be a policy which insures the person or classes of persons specified in the policy. The classes of persons are mentioned in Section 95 (1). A reading of the section would reveal that the compulsory insurance contemplated under Section 95 of the Act is to indemnify the owner of the vehicle from the liability, if any. If the owner himself suffers an injury in an accident, he does not acquire any right to get compensation from the insurance company under the policy issued to him. Insurance policy issued by the respondent is a contract of indemnity to satisfy the conditions laid down under Section 95 of the Act. The ingredients of the law of insurance are nowhere provided in the special statute. Necessarily therefore, the matter will be governed by the general substantive law which remains unaltered by the special law. If the insurer is not liable, then the insured is also not liable. In other words, the liability of the insurer depends upon the liability of the insured. Under the law, negligence of the owner or driver is a sine qua non for such liability.”
9. The aforesaid decision was followed by another Division Bench of Kerala High Court in the case of National Insurance Co. Ltd. v. Annamma Babu, 1990 ACJ 909 (Kerala).
10. A Division Bench of Allahabad High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Shakuntala Devi, , dealing with the same question also took the view that the liability of the insurer only arises when the insured incurs any liability in respect of the accident. When the insured dies in the accident of his own insured vehicle, the insurance company is not required to cover such liability or to pay damages or compensation to such person or his heirs.
11. A Division Bench of Bombay High Court in Oriental Insurance Co. Ltd. v. Chimajirao Kanhojirao Shirke, 1992 ACJ 452 (Bombay), also held that the insurance company is not liable in the case of the death of the owner of the vehicle.
12. In United India Insurance Co. Ltd. v. Odeti Mallu Bai, 1995 ACJ 851 (AP), Andhra Pradesh High Court has held as follows:
“(21) From the above discussion, it follows that liability of the insurance company is to indemnify the insured against the claim of a third party but not to pay compensation for injury or death of the insured-owner of a vehicle who died while driving the vehicle due to accident.”
13. What is the purpose of an insurance policy which is compulsorily required under the Motor Vehicles Act? The purpose clearly is that if any third party suffers damage due to an accident with a vehicle, it should be able to claim compensation from the insurance company. The intention of the legislature was that the injured party might find it very difficult to recover the amounts from the owner of the vehicle and, therefore, insurance was made compulsory so that the claimants could get their claims from the companies. However, the Act does not require that the policy necessarily covers risk to the owner himself. Some policies which in common parlance are termed as comprehensive policies cover various types of risk including the own damage to the vehicle. In that event extra premium is to be paid and it is by way of a mutual contract between the insurance company and the owner that such risk is covered. In the present case, no clause has been pointed out in the policy, Exh. RX, which shows that the insurance company had undertaken to cover the risk in case of death or injury to the owner.
14. Another important question which arises is, can an insurance policy which is basically meant for covering risk to third parties be required to cover the loss to the owner himself? The owner in the present case has died. Supposing he was the injured. Could he have filed a claim petition against himself? Obviously not. A person cannot be both the plaintiff and defendant. The insurance company is to indemnify the owner for damages which he is liable to pay. Therefore, it is quite obvious that the insured or his legal heirs cannot file a petition against the insurance company directly. There must be first an award against the insured and only then the insurance company is liable. This is obvious from the scheme of the Act and especially Section 149 of the Act which provides that insurance company has to satisfy judgments passed against the insured.
15. Therefore, I am in respectful disagreement with the law as laid down by Punjab and Haryana High Court in Kusum Sood v. United India Insurance Co. Ltd., .
16. In view of the above discussion, I am of the view that the correct position in law is that the insurance company is not liable to pay compensation in a case where the owner/insured himself suffers injury or death in the accident. The insured or his heirs cannot claim compensation from the insurance company unless the company has specifically undertaken to cover this risk.
17. This appeal is accordingly allowed and the award of the Tribunal passed in M.A.C. Petition No. 89-N/2 of 1994 dated 17.5.1995 is set aside and the claim petition filed by the claimants is dismissed. No order as to costs.