B.C. Subbamma vs The Branch Manager, United India Insurance Company Limited

Rathnakala, J.—In this appeal, the appellants are challenging the dismissal of their claim petition by the Motor Accident Claims Tribunal, Virajpet (hereinafter referred to as ''the Tribunal'' for brevity), in MVC No. 141 of 2009 vide order dated 30-7-2010. The brief facts of this case is that, appellant 1 herein is the wife, appellants 2 to 4 are the daughters and appellant 5 is the mother of the deceased B.N. Suku Chinnappa, who expired, allegedly in a vehicular accident that occurred on 12-4-2009. On his death, they filed claim petition u/s 166(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the Act'' for brevity), against the Insurance Company-the insurer of Tractor Trailer owned by deceased. Their case was that on 12-4-2009 at 4.00 p.m., the deceased B.N. Suku Chinnappa had loaded sand in his trailer attached to the tractor and was standing in front of the vehicle, at that time, all of a sudden the vehicle moved about and ran over the deceased; the deceased sustained grievous injuries; on the way to the hospital, he succumbed to the fatal injuries. He was an agriculturist by profession and the only earning member of the family. He was earning Rs. 25,000/- p.m. The respondent-Insurance Company contested the petition on the ground that the accident occurred due to rash and negligent driving of the vehicle by the deceased himself who did not possess valid driving licence at the time of the accident. The Tribunal after hearing both the parties, dismissed the claim petition.

It is the submission of the learned Counsel appearing for the appellants that it was a comprehensive policy covering the risk of own damage and it also covers the driver and owner of Tractor and Trailer bearing registration No. KA 12 T 2721 and without adverting to this aspect of the matter, the Tribunal has erroneously non-suited the claimants.

In reply, the respondent-Insurance Company submits that the deceased having not paid extra premium to cover self injury and damage, the vicarious liability of the incident cannot be fastened against the Insurance Company. Moreover, the accident is due to the negligent act of the deceased himself and the order passed by the Tribunal is well-founded and well-reasoned and the appeal is liable to be dismissed.

Having heard the both parties and on perusal of the impugned award, the sole point that arises for our consideration is:

Whether the impugned order of dismissal is erroneous and calls for interference?

It is not in dispute that the claimants herein are the wife, minor children and mother of deceased B.N. Suku Chinnappa who expired on 12-4-2009, when his tractor and trailer allegedly ran over him at 4.00 p.m. near his residence in Basugoor Village, Virajpet Taluk, Kodagu District. The claimants in their claim petition contended that the accident occurred when the deceased was standing in front of the vehicle,, all of a sudden the vehicle moved about and plied over the deceased but their evidentiary proof was otherwise. Consequent upon the accident, the brother of the deceased lodged a complaint with the jurisdictional police as per Ex. P. 1, wherein it was stated:

Contrary to the complaint averments, during the cross-examination, P.W. 1-the wife of the deceased stated that, the driver of the tractor had parked the vehicle on the up-steep road, while the deceased tried to place the stone to the back wheel of the tractor, suddenly the vehicle ran over him. Whichever be the situation i.e., whether the vehicle moved forward or backward, fact remain that the deceased had parked the vehicle in a dangerous position and he, himself was responsible for catastrophe.

We have perused the policy in question which is marked as Ex. P. 8. There is a clause under the heading "compulsory PA to owner-cum-driver amount Rs. 2,00,000/-, if Rs. 100/- is paid". This is the clause that is pressed into action by the claimants. In Dhanraj Vs. New India Assurance Co. Ltd. and Another, , disposed of on 24-9-2004, the Apex Court while deliberating on Section 147 of the Act, observed thus: 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. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards 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.

In the light of the above, we hold that the Tribunal did not fall into error in rejecting the claim against the respondent-Insurer of the deceased. There is no merit in the contention advanced for the appellants to interfere with the impugned order. Accordingly, appeal is dismissed. No order as to costs.