The National Insurance Company Limited vs Thota Kusuma Kumari

Dr. B. Siva Sankara Rao, J.—The appellant-2nd respondent-insurance company, in the claim petition, filed this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Kakinada, (for short, ''Tribunal'') in M.V.O.P. No. 43 of 2005 dated 13.03.2007, awarding compensation of Rs. 85,000/- with interest at 7.5% per annum as against the claim of the claimant of Rs. 1,04,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ''the Act'').

Heard Smt. Ramani Jonna, the learned standing counsel for the insurance company and Sri N.V. Ananta Krishna learned counsel for the claimant. The 1st respondent-driver of the crime car did not chose to put forth his appearance before the Tribunal as well as in this Court and taken as heard for disposal on merits. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The contentions in the grounds of appeal as well as oral submissions by the appellant-insurance company in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case and ought not to have granted the compensation and the compensation awarded by the Tribunal is highly excessive including the rate of interest and the Tribunal has no jurisdiction to pass an award under M.V. Act. Whereas the 1st respondent-claimant contending that the Tribunal rightly awarded the compensation with correct rate of interest and hence to dismiss.

Now the points that arise for consideration in the appeal are:

Whether the claim petition is maintainable and the tribunal got jurisdiction, if so the fastening of liability on the insurer otherwise is tenable?

To what result?

POINT-1:

The facts that are proved before the Tribunal that on 06.07.2004 the driver and his employer/owner of the car who was also traveling in the same vehicle and at about 8.30 a.m. there was drizzling and vehicle on being applied brakes dashed against a tree and in that the petitioner and the driver sustained injuries and there is nothing to interfere by this Court while sitting in the appeal.

The injured is no other than the owner of the car that was driven by the 1st respondent and insured with 2nd respondent covered by Ex. B-1 policy and the claimant sustained injuries in the accident and claimed an amount of Rs. 1,04,000/- towards compensation under Section 140 and 166 of the M.V. Act.

In fact the Tribunal proceeded under Section 166 of the M.V. Act and Section 140 is nothing but thereby mistakenly adding but the averments were on 06.07.2004 the driver of the car along with his owner while traveling in the car the accident occurred and thereby entitled to the compensation.

The Tribunal after appreciating the evidence of P.W 1 with reference to Ex. A-1 to A-5 regarding the accident and injuries sustained by the claimant (P.W-1) including from bunch of medical bills awarded Rs. 85,000/- against respondents 1 and 2 driver and insurer as the claimant-P.W-1 is owner of the vehicle. There was no discussion as to the policy covered personal accident risk of the owner, for not even owner-cum-driver, for traveling in the car as it is not the claim against the other vehicle involved. Secondly the Tribunal went wrong in considering the claim against the driver though the owner cannot claim against the driver for damages for his traveling in his own vehicle by engaged him for not a third party even to maintain the claim, but for remedy otherwise, even under Section 147(1)(b) of the M.V. Act read with under Section 168 of the Act. Thus, the remedy of the claimant is to approach the civil Court or Consumer Forum and not this forum for no jurisdiction, subject to personal accident insurance coverage to claim thereunder vide decision Dhanraj Vs. New India Assurance Co. Ltd. and Another, . It is because, for maintainability of the claim petition, the claimant must a third party and here when not a third party but owner of the vehicle the claim won''t lie. As held by the Apex Court in New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others, that the son of owner will not come within the definition of third party under the Motor Vehicles Act to maintain a claim petition under Section 163-A or 166 read with Section 168 of the Act. The other expression of the Apex Court in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, also speaks the same in holding that the owner who met with death in the motor accident of his own vehicle cannot be considered as a third party to maintain a claim before the Tribunal. No doubt in that factual matrix, the Apex Court within its power under Articles 136 and 142 of the Constitution of India, directed the insurer to pay the personal accident claim covered by the policy. Here for this Court while sitting in appeal against the award of the Tribunal, muchless to the Tribunal, there is no such power, though the Judgment speaks with that observation within the constitutional power of the Apex Court to give any such direction herein as it is not the case laying any general principle within the scope of Section 147 and 149 read with 168 of the Act for exercise of such discretion by the Tribunal or appellate forum. In fact for want of jurisdiction by this appellate court or by the Tribunal it cannot exercise any such power even if policy covered such risk: but for remanding to the tribunal to return the claim application to the claimant to file before the appropriate forum having jurisdiction under Order VII Rule 10 and 10A C.P. C by fixing time to take return of the claim petition and to submit to the Civil Court or Consumer Forum with any prescribed format duly filled enclosing to it with claim of protection under Section 14 of the Indian Limitation Act from the date of claim petition till return. The Tribunal also, if necessary, entertain the application of the claimant under Section 66 of the A.P. Court Fees Act read with Rule 475 of the A.P. Motor Vehicles Rules. 1989 to issue a certificate for refund of the Court fees paid on the claim petition, so as to pay before the Consumer Forum or civil Court. Accordingly point No. 1 is answered.

Point No. 2:

Accordingly and in the result, the appeal is disposed of. There shall be no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.