REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.     9100  OF  2018 (Arising out of SLP (Civil) No. 20085 of 2017)

NATIONAL INSURANCE CO.  LTD.              ….. APPELLANT

                VERSUS

ASHALATA BHOWMIK AND ORS.          ….. RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. National  Insurance  Co.  Ltd.  has  filed  this  appeal  challenging  the

judgment and order in MACAP No.25/2015 dated 15th March, 2017 whereby

the High Court of  Tripura at Agartala has directed the appellant-insurer to pay

the compensation to the respondents awarded by the Motor Accidents Claims

Tribunal,  West  Tripura,  Agartala  (for  short  'the  Tribunal')  in  a  sum  of

Rs.10,57,800/- with interest at the rate of 8% per annum from the date of filing

of the claim petition till the date of payment.

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3. The first respondent is the mother of deceased Dilip Bhowmik. The

second respondent is his wife and respondent Nos. 3 and 4 are his children.  On

20.5.2012 at about 7.00 p.m. Dilip Bhowmik was returning from Kathaltali to

his house by driving his vehicle bearing No. TR-01-U-0530.   When he reached

near the bridge of  Agartala Railway Station situated on the bye-pass under

Amtali police station, he met with an accident and sustained grievous injuries

on  his  person.   He  was  initially  rushed  to  Dr.  B.R.  Ambedkar  Memorial

Teaching Hospital, Hapania.  Thereafter, he was referred to AGMC and GBP

hospital, Agartala, where he was declared dead.  At the time of the accident he

was  aged  43  years.    The  respondents  alleged  that  the  deceased  was  a

businessman and his  monthly income was Rs.15,000/-.   They filed a claim

petition  seeking  compensation  amounting  to  Rs.68,15,000/-.    The  claim

petition was opposed by the appellant-insurer.   The Tribunal passed an award

granting total compensation in a sum of Rs. 10,57,800/-.

4. The appellant challenged the said award of the Tribunal  before the

High Court mainly contending that the deceased himself was the owner-cum-

driver of the offending vehicle.   He was not a third party within the meaning

of  the  Motor  Vehicles  Act,  1988  (for  short  'the  Act').   The  accident  had

occurred due to the negligence of the deceased. Therefore, the appellant, being

insurer of the vehicle, was not liable to pay the compensation.    

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5. The  High  Court  accepted  the  contention  of  the  appellant  that  the

deceased was not a third party and that the accident had occurred due to the

rash and negligent driving of the offending vehicle.  However, the High Court

directed the appellant to pay the compensation with a rider that the said order

shall not be treated as a precedent.  On perusal of the policy of the insurance,

the  High  Court  in  the  course  of  the  order  observed  that  indemnification

extended  to  personal  accident  of  the  owner-cum-driver  was  limited  to  the

extent of  Rs.2,00,000/-.  The finding of the High Court on this question is as

under:

"As  it  has  been  established  by  the  claimant- respondents  that  the  premium  was  paid  for  the personal accident the insurance company is liable to  pay the  said  compensation,  even  though  it  is limited  to  Rs.2,00,000/-  to  the  claimant- respondents.  There  is  no  challenge,  however, against the determination of the compensation."  

6. Learned counsel  for  the appellant  has  contended that  the  deceased

himself was driving the offending vehicle and has caused the accident.  No

other vehicle was involved in the accident.  He cannot be treated as a third

party.  Therefore, the High Court has rightly held that the claim petition filed

by the respondents was not maintainable.  In view of this finding, the High

Court  was  not  justified in  directing the appellant  to  pay the compensation.

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Learned counsel appearing for the respondents, on the other hand, has sought

to justify the impugned order.

7. We have carefully considered the submissions of the learned counsel

made at the Bar and perused the materials placed on record.  It is an admitted

position that the deceased was the owner-cum-driver of the vehicle in question.

The accident had occurred due to the rash and negligent driving of the vehicle

by the deceased.  No other vehicle was involved in the accident. The deceased

himself was responsible for the accident.  The deceased being the owner of the

offending vehicle was not a third party within the meaning of the Act.  The

deceased was the victim of his own action of rash and negligent driving.  A

Claimant, in our view, cannot maintain a claim on the basis of his own fault or

negligence and argue that even when he himself may have caused the accident

on account of his own rash and negligent driving, he can nevertheless make the

insurance company to pay for the same. Therefore, the respondents being the

LRs of the deceased could not have maintained the claim petition filed under

Section 166 of the Motor Vehicles Act.   

8. This Court in  Oriental Insurance Co. Ltd.  v.  Jhuma Saha (Smt)

and Ors. (2007) 9 SCC 263,  was considering a similar case where the owner

himself was driving the vehicle which due to his negligence dashed with a tree

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on the roadside as a result of which he died.  The Court held that the claim

petition filed by his LRs was not maintainable.  It was held thus:-            

"10. The deceased was the owner of the vehicle. For  the  reasons  stated  in  the  claim  petition  or otherwise,  he  himself  was  to  be  blamed for  the accident.   The  accident  did  not  involve  motor vehicle other than the one which he was driving. The question which arises for consideration is that the  deceased  himself  being  negligent,  the  claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.

11. Liability  of  the insurer  Company is  to  the extent of indemnification of the insured against the respondent or an injured person, a third person or in  respect  of  damages  of  property.   Thus,  if  the insured cannot be fastened with any liability under the  provisions  of  the  Motor  Vehicles  Act,  the question of  the insurer  being liable to indemnify the insured, therefore, does not arise".

9. Therefore,  the  High  Court  was  not  justified  in  directing  the

appellant/insurer to pay the compensation determined by the Tribunal.  Since

the indemnification extended to personal accident of the deceased is limited to

Rs. 2,00,000/- under the contract of insurance, the respondents are entitled for

the said amount towards compensation.   Hence,  the appellant is directed to

deposit the said sum of Rs. 2,00,000/- with interest @ 9 per cent per annum

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from the date of the Claim Petition till the date of deposit with the Tribunal

within a period of four weeks from today.  

10. The appeal is allowed in the aforesaid terms without any order as to

costs.

 ……………………………J.

  (N.V. RAMANA)

       ……………………………J.  (S. ABDUL NAZEER)

New Delhi; August 31, 2018.

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