MACT Claim Petition u/s 163a - Claim Allowed - M/s.National Insurance Co. Ltd versus P.Alagesan

MADRAS HIGH COURT

Before:- Justice Mani Kumar
C.M.A.No.3711 of 2012 M.P.No.1 of 2012

M/s.National Insurance Co. Ltd.,. ... Appellant
versus
P.Alagesan ... Respondent

For Appellants : Mr.G.Udayasankar
Allahabad High Court Judgments
J U D G M E N T

In the accident, which occurred on 29.09.2009, a 45 year old, owner-cum-driver of a lorry, sustained injuries. He was treated in various hospitals. He claimed compensation of Rs.3,00,000/-.
The claim was made only against the Insurance Company. On evaluation of pleadings and evidence, the Claims Tribunal held that the Insurance Company is liable to pay compensation and quantified the same at Rs.1,65,000/- with interest at the rate of 7.5% per annum. Challenging the liability, fastened on the Company to pay the abovesaid compensation, the present appeal has been filed.

2. Facts morefully set out in the claim petition are as follows:

That on 29.09.2009, about 10.50 A.M., the respondent/claimant came from Coimbatore, taking T.V. Sets in his lorry, bearing Registration No.TNW 6507, to Mummy-Daddy TV Showroom, Kamarapalayam and parked his vehicle, near the showroom. When he removed and rolled down the tarpaulin cover, he accidentally fell down from a stationary vehicle, resulting in injuries, in the left temporal parietal region, tenderness over left side of the chest and fractures of left side ribs 2 to 8. Immediately, he was taken to Government Hospital, Komarapalayam and given first aid. Thereafter, after taking treatment in Government Hospital, Erode, he was again admitted in Sree Gokulam Hospital, Salem, and took treatment as inpatient between 29.09.2009 and 08.10.2009. According to him, he spent more than Rs.1,75,000/- towards medical expenses and Rs.5,000/- towards travelling expenses. Due to the injuries, he was immobilised for atleast three months. He has lost his income for three months, during the period of treatment and convalescence. It is his further case that he had become permanently disabled and unable to sit, walk and do work. For the abovesaid reasons, he claimed compensation of Rs.3,00,000/-.

3. The National Insurance Company Ltd., appellant herein, has denied the averments stated supra. In addition to the above, the Company submitted that the claim petition itself is not maintainable in law, either under the Motor Vehicles Act or Workmen's Compensation Act. According to the Company, in view of the specific admission in Ex.P1 FIR, that the respondent/claimant himself slipped and fell down from the cabin of the lorry, bearing Registration No.TNW 6507 and when Komarapalayam Police, on investigation, found that the there was no accident involving the vehicle and when further action in the criminal case, was dropped, by submitting a final report to the Judicial Magistrate, Tiruchengode, the Company is not liable to pay compensation. As per the conditions of the policy, the respondent/claimant cannot seek for compensation for the disablement, injuries and also for the expenses incurred. Without prejudice to the above, the Insurance Company has disputed the compensation claimed under various heads.

4. Before the Claims Tribunal, the respondent/claimant examined himself as PW.1 and PW.2, is the Doctor, who examined the respondent/claimant, with reference to medical records and on the basis of the physical infirmities and discomfort noticed by him, during clinical examination, assessed the disability at 25% and issued Ex.P15 Disability Certificate. Ex.P1 FIR, Ex.P2 Accident Register, Ex.P3 Wound Certificate, Ex.P4 Medical Prescriptions, Exs.P5 and P11 Medical Bills, Ex.P6 C.T.Scan Report, Ex.P7 Driving Licence, Ex.P8 Registration Certificate, Ex.P9 Insurance Policy, Ex.P10 O.P.Chit, Ex.P12 Trip Sheet, Exs.P13 and P14 X-Ray and its receipt and Ex.P15 Disability Certificate, have been marked on the side of the respondent/claimant. On behalf of the appellant-Insurance Company, Mr.Devarajan, son of the Administrative Officer of the Company has let in evidence. Ex.B1 Policy has been marked.

5. On evaluation of pleadings and evidence, the Claims Tribunal held that the Insurance Company is liable to pay compensation for the permanent disablement and under other heads. The quantum of compensation arrived at by the Claims Tribunal under various heads, is as follows:

Disability Compensation : Rs. 50,000/-
Pain and Suffering : Rs. 15,000/-
Extra Nourishment : Rs. 10,000/-
Medical Expenses : Rs.1,00,000/-
Transportation : Rs. 5,000/-
Attendant Charges : Rs. 5,000/-
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Total : Rs.1,87,000/-
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Though the Tribunal has quantified the compensation at Rs.1,87,000/-, it has made the Insurance company to pay compensation of Rs.1,65,000/- only.
6. Being aggrieved by the decision of the Claims Tribunal, Mr.G.Udayasankar, learned counsel for the appellant-Insurance Company submitted that when the respondent/claimant himself was the cause for the accident and when he had slipped and fallen from a stationary lorry, while removing the tarpaulin sheet and when the respondent/claimant himself, during investigation, by the Police, has categorically admitted that the fall was accidental and consequently, when the Police has closed the case in Cr.No.805 of 2009, as Further action dropped , on the basis of the final report submitted to the learned Judicial Magistrate, Tiruchengode, the Claims Tribunal ought not to have entertained the claim petition and thus, committed a gross error in fixing liability on the Insurance Company to pay compensation.

7. According to the learned counsel for the Insurance Company, as per Ex.B1, Policy under which, the vehicle was covered, is an "Act Policy" and for the negligence on the part of the respondent/claimant, the Company cannot at any stretch of imagination, be mulcted with any liability to pay compensation. It is also his submission that the Claims Tribunal went wrong in recording a finding that since the Insurance Company has collected an additional premium to cover the risk of the owner cum driver, compensation has to be paid by the Company.

8. He further submitted that the Claims Tribunal has failed to consider that even taking it for granted that an additional premium has been received to cover the risk of the owner-cum-driver, the same is subject to an overall limit of Rs.2 Lakhs and subject to the terms and conditions of the policy and since, in the case on hand, there was no accident, involving the vehicle, insured with the appellant company, for the accidental fall of the respondent/claimant, the Company cannot be made liable to pay compensation.

9. In support of the abovesaid contentions, on the apect of admission made by the respondent/claimant that the accident occurred due to his negligence and the closure of the criminal case, learned counsel for the appellant-Insurance Company took this Court through the oral and documentary evidence, adduced by the claimant and the Company, in particular, the oral testimony of RW.1. Without prejudice to the abovesaid contentions, he also submitted that the Tribunal went wrong, in awarding a huge compensation of Rs.1,65,000/- to the respondent/claimant. According to him, the owner-cum-driver cannot maintain a claim against the appellant-Insurance Company.

Heard the learned counsel for the appellant and perused the materials available on record.

10. Before adverting to the facts of this case, this Court deems it fit to consider the meaning of the word, "accident".

11. While defining the word, Accident , the Apex Court in Regional Director, E.S.I. Corporation v. Francis De Costa (1993) Supp 4 SCC 100 (104): 1994 SCC (L&S) 195, held that, The popular and ordinary sense of the word 'accident' means the mishap or an untoward happening not expected and designed to have an occurrence is an accident.

12. An accident is an occurrence or an event which is unforeseen and startles one when it takes place, but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence, the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an 'accident'. [Union of India v. Sunil Kumar Ghosh, (1984) 4 SCC 246: AIR 1984 SC 1437 (1740). (Railways Act, 1890 s. 82A)] Accident, means, an untoward mishap which is not expected or designed. [Jyothi Ademma v. Plant Engineer, Nellore, AIR 2006 SC 2830 = 2006 (5) SCC 513]

13. Accident is not the same as an occurrence, but something that happens out of the normal or ordinary course of things. An effect is said to be accidental when the act is not done with the intention of causing it, and its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. The idea of something fortuitous and unexpected is involved in the word "accident", [Sukhdev Singh v. Delhi State, (2003) 7 SCC 441 (447)]

14. One of the main requirements for maintaining a claim under the Motor Vehicles Act, 1998, is that there should have been a death or permanent disablement to any person, resulting in an accident, arising out of and use of motor vehicle or motor vehicles. In this context, this Court also deems it fit to consider some of the decisions, relating to the expression, "accident arising out of and use of motor vehicle".

15. In United India Insurance Company Ltd., v. Amir Basha reported in 2004 (2) SCC 23 (DB), parents of the deceasedclaimed compensation on the grounds that their son died due to the fire accident, out of the use of a motor vehicle. Referring to Sections 147(1)(b)(i) and 165 of the Motor Vehicles Act, the Insurance Company has contended that as the death was occasioned only due to fire accident and not when the vehicle was put to use, as contemplated under the provisions of the Motor Vehicles Act, no liability can be fastened on them. However, the Claims Tribunal, on appreciation of evidence, both oral and documentary evidence, passed an award for Rs.71,600/- with interest at the rate of 12% per annum, from the date of petition. Questioning the liability, the Insurance Company has preferred an appeal. As the limited dispute was with reference to the expression, accident arising out of and use of motor vehicle", the Division Bench of this Court considered various decisions and ultimately, at Paragraph 13, held as follows:

13. It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the expression "caused by" and "arising out of have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising out of use of motor vehicle" as mentioned in Section 92-A of the 1939 Act and Section 165 of 1988 Act enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of motor vehicle", it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We are also of the view mat the expression "arising out of the use of motor vehicle" has to be given a wider meaning. We are also of the view that "use of motor vehicle" need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. Accordingly, we hold that the death of Absar arose out of the use of motor vehicle, and the claimants/respondents 1 and 2 herein are entitled to compensation for the death of their son Absar.

16. At Paragraphs 8 to 12, the Division Bench considered the following decisions, 8. We have already referred to the vaht provisions regarding requirements of policies and limits of liability as well as matters to be tried by the Claims Tribunal. Now let us consider various decisions cited before us. The expression "caused by" and "arising out of under Sections 95(l)(b)(i) and (ii) and 96(2)(b)(ii) of the Motor Vehicles Act, 1939 was considered by the Supreme Court in Shivaji Dayanu Patil v. Atschala Uttam More, AIR 1991 SC 1769. The following conclusion is relevant for deciding the present case: (paragraphs 35 and 36) "35. This would show that as compared to the expression "caused by", the expression "arising out of has a wider connotation. The expression "caused by" was used in Sections 95(l)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of which indicates that for the purpose of awarding compensation u/S.92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Sec.92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

36. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on slopping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collusion and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz- the petrol tanker No. MKL7461."

9. In Sharlet Augustine v. K.K. Raveendran, AIR 1992 Ker. 346, a Division Bench of the Kerala High Court had an occasion to consider the expression "arising out of the use of motor vehicle" under Section 110 of the Motor Vehicles Act, 1939. Their Lordships have held that the expression "arising out of the use of motor vehicle" referred to in Section 110 has to be given a wider meaning. In that case, the bus in question dashed against a wayside electric post. A passenger of a bus while he was carrying on rescue operations after coming out of the bus, got electric shock due to stray live wire and died. The Division Bench has held that death of passenger arose out of use of motor vehicle and his legal representatives would be entitled to compensation under Section 110.

10. In the case of Babu v. Remesan, AIR 1996 Ker. 95, a Division Bench of the Kerala High Court has held that: (para 5) 5. Learned counsel for the Insurance Company tried to distinguish those decisions on the facts by pointing out that the use of the motor vehicles in those two decisions is direct, though the vehicles were stationary whereas in this case the use of the motor vehicle was only indirect though the rope was used for the purpose of keeping the load in the vehicle intact. The said distinction on the facts is not enough to exclude the accident which occurred in this case out of the ambit of the words "use of a motor vehicle." Such use need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. The expression employed by the Legislature is "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of a motor vehicle". Evidently the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases. The test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. After all the provisions for dealing with the compensation cases are intended for a sublime social objective. We are, therefore, not inclined to adopt a restrictive interpretation for the word "use" in the present context."

11. In the case of Himachal Road Trans. Corpn. v. Om Prakash, 1992 AC J 40 (Himachal Pradesh), a bomb planted by someone in a bus exploded when the bus had covered a short distance after starting from a bus-stand causing injuries to some and proving fatal to other passengers. A learned Single Judge of the Himachal Pradesh High Court has held that the death of or bodily injuries to persons arose out of the use of motor vehicle and the Claims Tribunal has jurisdiction to entertain claim petitions.

12. It is also relevant to refer a recent judgement of the Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 ACJ 428. In that case, a front tyre of a jeep burst while in motion. The vehicle became unbalanced and turned turtle, crushing to death a person walking on the road. The Tribunal after holding that there was neither rashness nor negligence in driving the vehicle, hence the driver has no liability and as such the owner has no vicarious liability to pay compensation to the dependants of the deceased and ultimately dismissed the claim petition, but awarded compensation under no fault liability. The order of the Tribunal was upheld by the High Court, against which the claimants preferred an appeal to the Supreme Court. Their Lordships following the rule of strict liability propounded in Rylands v. Fletcher, 1861 (73) All E.R.I, held that the accident occurred when the vehicle was in use and the rule of strict liability propounded in Rylands v. Fletcher is applicable in claiming compensation made in respect of motor accidents.

17. In United India Insurance Co. Ltd. v. V.Dharmarasu reported in 2007(5) MLJ 354, the death was due to contact with a live high tension wire on the container of the lorry. The death was recorded under Section 147 Cr.P.C., as a mysterious death. A claim for compensation was made. The Insurance Company disputed the claim, as it is not maintainable. This Court, after considering a catena of decisions, held that, the claim petition is maintainable even if the driver of the vehicle was not proved to be negligent in driving the vehicle and negligence is one of the causes for action for making a claim for compensation in respect of accidents arising out of use of motor vehicle and the accident should be connected with the use of motor vehicle but the said contention need not be direct and immediate.

The expression arising out of the vehicle has to be given the widest interpretation having regard to the purpose underlying the motor vehicle legislation.

The claim petition is to be allowed, if the vehicle in question was in 'use' at the time of accident and it need not be a motor accident.

FIR and Section 161 statement can be used only to corroborate or to contradict the evidence before the Tribunal and all that is needed is preponderance of probabilities.

18. Apart from Amir Basha's case (cited supra), Kaushnuma Begum's case (cited supra) and Sharlei Augustine's (cited supra), the other decisions relied on, in V.Dharmarasu's case (cited supra), are extracted hereunder:

15. The Division Bench of the Karnataka High Court in Gouri Bi (Smt) and others v. Khemraj reported in 1992 ACJ 623, has held that the expression "arising out of the vehicle cannot be equated to the phrases, "arising under" or "caused by" and arising out of. The Court further held that "arising out of has wide meaning and it means "connected with" and must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle that is required to satisfy the words "caused by". Casual relationship to the injury may be enough to satisfy the words the expression "arise out of" as used in the Act and in the policy.

17. In a decision in Maqbul Hussain Kitabullah v. Kulvinder Sriram Kapoor & Ors reported in 1995 ACJ 989 (Bom), the Court has held that, "the expression "arises out of" had a wider connotation. It is not necessary that there should be direct any proximate action between the use of motor vehicle and the accident resulting in death or permanent disablement. It is enough if the accident can be connected with the use of the motor vehicle. The construction of the expression "arises out of the use of a motor vehicle" in Section 92-A of the Act enlarged the field of protection made available to the victims of an accident and was in consonance with the beneficial object underlying the enactment. In other words the expression "arisen out of" cannot be equated to the expression "caused by""

18. .......Negligence is one of the causes for action for making a claim for compensation in respect of accidents arising out of use of motor vehicle. The accident should be connected with the use of motor vehicle but the said connection need not be direct and immediate. The expression "arising out of the vehicle" has to be given the widest interpretation having regard to the purpose underlying the motor vehicle legislation.

19. In National Insurance Co. Ltd. v. Gitaben Saitansinh Rajput reported in 2009(2) TNMAC 399 (Guj.), the driver was found murdered and his body was found in the driver seat. A claim for compensation was made. The company disputed the same, on the ground that the incident of death was a murder simplicitor and hence, no claim can be entertained. Though the above said issue is not relevant for the facts of this present case, yet the decision of the Gujarat High Court, as to whether the legal representatives of the deceased are entitled to make a claim for compensation, "arising out of use of motor vehicle", is worth consideration. At Paragraph 22, the High Court held that, The use of vehicle means it covers driven, repaired, parked, kept stationary or left unattended condition of vehicle in question or involved in accident. The accident is incidental to use of motor vehicle. Then jurisdiction of Claims Tribunal is not restricted under provision of the Motor Vehicles Act.

20. In New India Assurance Co. Ltd., v. Unnmalai reported in 2010 (1) TNMAC 576, the death was due to complication of burns. When the deceased was unloading grinders from the roof of the vehicle, without noticing the same, the driver started the vehicle, which came in contact with a live electric wire and that he was electrocuted. The company disputed the claim. This Court held that as the accident, arose out of use of the vehicle, the Insurance Company is liable to pay compensation.

21. In National Insurance Co. Ltd., reported in 2012 (2) TNMAC 125 (Del.), when a tank driver climbed over the Tanker, after parking it, to check the condition inside the Tanker, he came in contact with a overhead electric wire and due to electrocution, died on the spot. Father, widow and minor son claimed compensation under Section 163-A of the Motor Vehicles Act. The National Insurance Company Ltd., the insurer of the tanker disputed the claim, on the ground that the death was not due to any accident, arising out of the insured vehicle and therefore, the Company is not liable to pay compensation. The Claims Tribunal has rejected the case of the Insurance Company and quantified the compensation. Being aggrieved by the finding, fixing liability, the Insurance Company has preferred an appeal to the High Court. Primarily, they submitted that since no accident had occurred, arising out of use of vehicle, the claim was not maintainable. Without prejudice to the above, the Insurance Company has contended that even taking it for granted that the liability could be fastened on the Company, it can be done only to the limited extent, as per the provisions of the Workmen's Compensation Act. Finding that the said plea had not been raised by the Insurance Company before the Claims Tribunal and that the same has been raised for the first time before the High Court, the Delhi High Court rejected only the plea of limited liability. On the question, as to whether the death was not due to the accident, arising out of and use of motor vehicle and whether the legal representatives of the deceased, father, widow and minor children, were entitled to compensation or not, under Section 163-A of the Motor Vehicles Act, 1988, after considering the judgments in Shivaji Dayanu Patil v. Vatschala Uttam More reported in 1991 ACJ 777, Rita Devi v. New India Assurance Co. Ltd., reported in 2000 ACJ 801 (SC), Samir Chanda v. Managing Director, Assam State Transport Corporation reported in 1998 ACJ 1351 (SC), etc., the Delhi High Court held that the accident in question arose out of use of motor vehicle and therefore, the legal representatives of the deceased were entitled to maintain the claim, under Section 163-A of the Act. The decisions referred in Munesh Devi's case, are extracted hereunder:

(i) In Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 AC J 777, there was a collision between a petrol tanker and a truck due to which the petrol tanker went off the road and fell at a distance of about 20 feet from the highway leading to leakage of petrol which collected nearby. Later an explosion took place in the petrol tanker resulting in fire. Number of persons who assembled near the petrol tanker sustained burn injuries and few of them succumbed to the injuries. The victims filed the Claim Petitions which were dismissed by the Claims Tribunal on the ground that the explosion and the fire had no connection with the accident, and was altogether an independent accident. The Appeal was allowed by the learned Single Judge of the High Court holding that the explosion was a direct consequence of the accident. The Division Bench of the High Court affirmed the findings of the learned Single Judge against which the matter came up before the Supreme Court.

The Supreme Court dismissed the Special Leave Petition holding that the explosion and fire resulting in injuries and death was due to the accident arising out of the use of the motor vehicle. The findings of the Supreme Court are reproduced hereunder:

"25. These decisions indicate that the word "use", in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some break-down or mechanical defect. Relying on the abovementioned decisions, the Appellate Bench of the High Court had held that the expression "use of a motor vehicle" in Section 92-A, covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case the learned Judges have observed that the tanker in question while proceeding along National Highway No. 4 (i.e. while in use) after colliding with a motor Lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. We are in agreement with the said approach of the High Court. In our opinion, the word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck.
35. This would show that as compared to the expression "caused by", the expression "arising out of has a wider connotation. The expression "caused by" was used in Sections 95(l)(b)(i) & (ii) & 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct andproximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.
36. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle' In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the Petrol Tanker No. MKL-7461.
(ii) In Rita Devi v. New India Assurance Co. Ltd., 2000 AC J 801 (SC), the deceased was employed to drive an autorickshaw for ferrying passengers on hire. On the fateful day, the autorickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for journey. As to what happened on that day is not known. It was only on the next day that the Police was able to recover the body of the deceased but the auto rickshaw in question was never traced out. The owner of the autorickshaw claimed compensation from the Insurance Company for the loss of autorickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the heirs of the deceased would be entitled to compensation. The question as to whether the case of murder would be covered was also gone into. Paras 9 & 10 are relevant and are quoted below:
"9. A conjoint reading of the above two Sub-clauses of Section 163-A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the Claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled forpayment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words 'death due to accident arising out of the use of motor vehicle'.
10. The question, therefore, is can a murder be an accident in any given case' There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The differences between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
(iii) In Samir Chanda v. Managing Director, Assam State Trans. Corporation, 1998 ACJ 1351 (SC), the Apex Court upheld the claim for compensation in respect of injuries suffered by the claimant due to bomb blast inside the vehicle relying on the decision given in Shivaji Dayanu Patilv. Vatschala Uttam More, 1991 ACJ 777.
(iv) In Kaushnuma Begum v. New India Assurance Co. Ltd, 2001 ACJ 428, the Supreme Court held that the Principle of Strict Liability propounded in Rylands v. Fletcher, (186-73) All ER Rep 1, was applicable in claims for compensation made in respect of motor accidents. The relevant findings of the Supreme Court are reproduced hereunder:
"72. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident ? This question depends upon how far the Rule in Rylands v. Fletcher (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J. thus:
"The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
19. Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands v. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.
20. "No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable from the Rule of Strict Liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the Claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the Claimants of the compensation payable to them."
(v) In National Insurance Co. Ltd v. Shiv Dutt Sharma, 2004 ACJ 2049 (J&K), two sets of claims were made in this case; one relating to the accident in a Bus and the other relating to an accident where bullets of terrorists killed the passengers of a Bus. The Jammu and Kashmir High Court held as under:
"45. On the basis of the judicial pronouncements and the material which has come on the record, it is concluded:
"(i) That a passenger travelling in a Bus when he suffers from an injury on account of bomb explosion or on account of any other activity including terrorist activity, he would be well within his rights to claim compensation. This view is spelt out from the decision given by the Supreme Court of India in Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 (SC), and the latter decisions noticed above;
(ii) That even if a person is not actually in the vehicle and is standing outside and suffers an injury, even in that case Supreme Court of India has allowed compensation in Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 ACJ 777 (SC). Therefore, merely because some of the victims were taken out of the Bus and thereafter shot dead, would not make any difference;
(iii) That the material which has come on the record justified the grant of the compensation and the quantum thereof is accordingly sustained."
(vi) In DTC v. Meena Kumari, 2010 (3) ACC 72, a bomb blast in a DTC Bus resulted in the death of the deceased, this Court discussed the law with respect to the liability of DTC to pay compensation to the legal representatives of the deceased and held that the accident arose out of the use of motor vehicle and, therefore, the Claimants were entitled to compensation under Section 163-A of the Motor Vehicles Act, 1988.
(vii) In United India Insurance Co. Ltd. v. Mosina, MAC.App. No. 73 of 2006 decided on 25.11.2011, this Court held that this issue was no moreres integra in view of the judgment of the Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC). The findings of this Court are as under:
"79. That apart even legally also this contention is untenable and issue is no more res integra. Way back in the year 2000, the Apex Court had occasioned to discuss the identical issue in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 810 (SC). In that case the deceased was employed to drive an auto rickshaw for ferrying passengers on hire. On the fateful day, the autorickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for journey. As to what happened on that day is not known. It was only on the next day that the police was able to recover the body of the deceased but the autorickshaw in question was never traced out. The owner of the autorickshaw claimed compensation for the Insurance Company for the loss of autorickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the heirs of the deceased would be entitled to compensation.
20. The Court interpreted the expression "arising out of the use of the motor vehicle" in the context of death or permanent disablement suffered due to the accident arising out of the use of the motor vehicle and gave it a very wide interpretation even to include the situation where a "murder" can be treated as accident in a given case. Following discussion on this aspect from the aforesaid judgment is worthy of a quote:
"A conjoint reading of the above two sub-clauses of Section 163-A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of use of the motor vehicle (emphasis supplied), without having to prove wrongful act or neglect or default of any one. Thus, it is clear, if it is established by the Claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words 'death due to accident arising out of the use of motor vehicle'.
The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But, there are also instances where murder can be by accident on a given set of facts. The differences between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.

Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw."

While taking this view, the Court again emphasized that having regard to the fact that it was a beneficial legislation enacted with a view to confer a benefit of expeditious payment of a limited amount, same has to be given particular interpretation.

21. The plain language of Section 163-A of the Act disclosed that the liability can be of the owner of the motor vehicle or the authorised Insurer. Thus, the Insurer is also made liable if the Insurance Policy is taken. In the present case not only the vehicle in question was insured the Insurance cover/Policy placed on record further reveals that the premium was also paid for driver and helper. In these circumstances, the Insurance Company, cannot shy away from its liability when owner of the vehicle had taken Insurance in respect of driver and helper by paying premium on that account as well. It is also to be noted that such a plea was not even taken before the learned MACT and is raised for the first time in this Court."

22. It is well settled that Motor Vehicles Act, 1988 is a beneficial legislation. Reference can be made to a decision of the Apex Court in Smt.Rita Devi and others v. New India Assurance Co. Ltd., reported in AIR 2000 SC 1930, wherein, while construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose.

23. In Shivaji Dayanu Patil and another v. Vatchala Utham More reported in 1991 ACJ 177, the Apex Court reiterated that in the matter of interpretation of a beneficial legislation, the approach of the Courts should be to advance the beneficent purpose.

24. At Paragraph 56 of the judgment in Deepal Girishbhai Soni v. United India Insurance Company Ltd., reported in 2004 (5) SCC 385, the Supreme Court held that, "It is now well-settled that for the purpose of interpretation of statute, same is to be read in its entirety. The purport and object of the Act must be given its full effect. [See High Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat & Ors. [JT 2003 (3) SC 50], Indian Handicrafts Emporium and Others vs. Union of India and Others [(2003) 7 SCC 589], Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. [JT 2003 (9) SC 109 = 2003 (9) SCALE 713 and Ashok Leyland Vs. State of Tamil Nadu and Anr. [2004 (1) SCALE 224]. The object underlying the statute is required to be given effect to by applying the principles of purposive construction."

25. Reverting back to the case on hand, it is the case of the respondent/claimant that on 29.09.2009, about 10.50 A.M., he came from Coimbatore, taking TV sets in his lorry, bearing Registration No.TNW 6507, to deliver the same to Mummy-Daddy TV Showroom, Komarapalayam and when he was removing the tarpaulin sheet, he accidentally fell down, from a height of 15 feet and sustained grievous injuries, in his left temporal parietal region and tenderness over left side of chest. A case in Cr.No.805 of 2009, has been registered as an accidental fall, on the file of Komarapalayam Police Station, under Ex.P1 FIR.

26. In the complaint lodged by the respondent/claimant to the Police, the respondent has admitted that it is an accidental fall. Perusal of the award also shows that during cross-examination, the respondent/claimant has admitted that the accident was unexpected and that the Police has closed the criminal case. However, PW.1, injured has denied the suggestion that since the criminal case has been closed, he is not entitled to claim compensation. He has also denied the suggestion that as it was not a motor accident, the Insurance Company is not liable to pay compensation.

27. RW.1, Administrative Officer of the Insurance Company has deposed that inasmuch as the owner of the vehicle/insured, in his complaint, has stated that he himself had fallen down from the top of the vehicle and as the complaint itself has been closed, the respondent/claimant is not entitled to compensation. Perusal of the Policy shows that the appellant-Insurance Company has received a sum of Rs.100/- under Personal Accident Cover to owner-cum-driver. Liability under the policy is Rs.2 Lakhs.

28. In Kaliathal v. New India Assurance Co. Ltd., reported in 2004 (1) TNMAC 135 (DB), owner of the Tractor, died. Legal representatives of the deceased made a claim. The Insurance Company resisted the claim on the ground that the Insurance policy covers only the third party risk and not the risk to the life of the insured. The Tribunal came to the conclusion that the owner of the vehicle should be construed as a third party, as he was walking along the road, at the time of accident. Relying on Section 147 of the Motor Vehicles Act, 1988, a learned Single Judge of this Court, came to the conclusion that the insurer is not liable to indemnify the liability of the owner for the death of the person, who himself was the insured. When the said decision was tested on appeal by the claimants, a Division Bench of this Court, following the decisions of the Apex Court in Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Co. Ltd., [2001 ACJ 8 (SC)], National Insurance Co. Ltd., v. Nicolletta Rohtagi [2002 ACJ 1950 (SC)] and United India Insurance Co. Ltd., v. Lakshmi [1990 ACJ 390 (MAD)], held that the legal representatives cannot maintain a claim petition against the insurer and accordingly, dismissed the appeal. In the above reported case, there was no personal cover for the owner and hence, this Court has dismissed the appeal. Going by the defence taken up by the Insurance Company, it could be deduced that had there been a personal cover, the decision of this Court would have been different.

29. In Dhanraj v. New India Assurance Co. Ltd., reported in 2004 (4) CTC 716, the policy was a comprehensive policy and that there was no personal accident cover. Considering the same, the Supreme Court, at Paragraph 10, observed that, In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading own damage is for covering the liability towards personal injury. Under the heading owner damage , the words premium on vehicle and non-electrical accessories appear. Therefore, on the facts of the case, the Supreme Court held that as the premium paid was only towards damage to the vehicle and not for the person, the owner of the vehicle can claim compensation, only if a personal accident insurance is taken. A mere comprehensive policy taken by the owner, does not entitle the owner cum driver, to maintain a claim for compensation, without payment of additional premium to cover the risk of personal injury or death of the owner-cum-driver.

30. In New India Assurance Co. Ltd., v. Meera bai reported in 2006 (9) SCC 174, while considering the scope of statutory liability under Section 147 of the Motor Vehicles Act and on the question as to whether the owner of the vehicle is covered, on the facts of the reported case, the Supreme Court, observed that it was not shown that the particular policy covered any risk of injury to the owner himself and therefore, held that the words paid driver and/or conductor contained in schedule to the policy, did not cover the owner, driving his own vehicle. Again, the inference that could be drawn from the above judgment is that if there was a policy covering the risk of personal injury to the owner or death, the injured or the legal representatives, as the case may be, can always maintain a claim petition.

31. In United India Insurance Co. Ltd. v. Rukiya reported in 2006 (2) TNMAC 177 (Ker.), husband of the first respondent therein, owner of a Maruti Car, was driving the vehicle. It went out of control and hit against a tree, causing his death. A claim petition was made by the legal representatives. The Company objected to the claim, contending inter alia that the policy taken was only for indemnifying the liability of the owner of the vehicle to pay compensation for causing injuries to third parties. After considering the objections and placing reliance on a decision in Dhanraj v. New India Assurance Co. Ltd., [2004 (8) SCC 553 = 2004 (4) CTC 716], at Paragraph 4, a Division Bench, observed that a comprehensive policy will not cover all risks that is possible. Only statutory liability and liability for risks, for which additional premium is paid, are covered. Since no additional premium was paid to cover the personal accidental risks of the owner, the compensation directed to be paid by the Insurance Company to the legal representatives of the deceased, was set aside. The inference that would emerge from the judgment is that, had there been an additional premium, paid to cover personal risks of the owner, the compensation awarded by the Tribunal would have been sustained.

32. In S.Dhanapal v. A.Jerome and others reported in 2007(1) TN MAC 165, it was held as under:

17. The argument that the insured owner of a motor cycle involved in a motor accident can also claim to be a third party must, therefore, be rejected on first principles alone. The view expressed by the learned Single Judge in New India Assurance Co.Ltd. v. Kaliathal and others, 2002 ACJ 1035 was confirmed by a Division Bench of this Court in Kaliathal and others v. New India Assurance Co.Ltd. And another, 2004 ACJ 51 in which this Court has held as follows:

3. A Division Bench of this Court in L.P.A.No.187 of 1999, decided on 26.07.2000, has held that the main purpose of the policy is to indemnify the insured against loss or damage arising out of the use of the motor vehicle owned by the insured; that the policies issued for motor vehicles are not the same as policies of life insurance and that the policy is meant to cover the liabilities arising out of the use of the motor vehicles insofar as the liabilities of the owner are concerned and the owner cannot claim to be treated as third party by becoming a passenger of his own vehicle.

33. In Oriental Insurance Co. Ltd., v. Jhuma Saha reported in 2007 (2) TN MAC 56 (SC) = 2007 ACJ 818, the deceased was the owner of a Maruthi van, and while he was driving the said vehicle, it dashed against a tree. He succumbed to the injuries. A claim petition was filed by the legal representatives of the deceased for compensation. The Insurance Company contested the claim and denied its liability, on the ground that no additional premium was paid covering the risk of the owner of the vehicle. On the above facts, the Supreme Court, at Paragrah 13, held as follows:

13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case. Here again, the decision makes it clear that had the owner paid the additional premium, the Insurance Company would have been saddled with a liability to pay compensation to the maximum limit, provided for under the contract of Insurance.

34. In New India Assurance Company Ltd., v. Kendra Devi reported in AIR 2008 SC 490, husband, owner-cum-taxi driver, died, when he lost control over the vehicle, which fell into a river. Legal Representatives made a claim. The Tribunal awarded compensation. Appeal filed by the Insurance before the High Court was dismissed. Before the Supreme Court, the Insurance Company contended that inasmuch as the insurance policy issued was only for a paid driver and not for the owner, who happened to be driver of the vehicle, at the time of accident and in the absence of payment of any additional premium/coverage to the owner of the vehicle, the Company is not liable to pay compensation for the death of the deceased. Before the Supreme Court, though the Company heavily relied on Section 147 of the Motor Vehicles Act, which speaks about the statutory liability to third parties and also on the decision in New India Assurance Co. Ltd., v. Meera Bai reported in 2006 (9) SCC 174, taking note of the peculiar facts that the claimants therein, had lost their breadwinner, the Apex Court was not inclined to interfere with the concurrent orders of the Tribunal and High Court.

35. Upon Perusal of the above judgment, it could be deduced that there was an implied admission on the part of the Insurance Company that, had the deceased, owner cum driver, paid an additional premium/coverage, the Company would have been mulcted with the liability to pay compensation, even if the owner happened to drive the vehicle, at the time of accident.

36. In The Divisional Manager, National Insurance Co. Ltd., Anantapur v. Smt.Mahamooda [C.M.A.No.407 of 2000, dated 20.11.2008], the owner of the vehicle was transporting mangoes in a lorry. He lost control and the vehicle turned turtle. He sustained injuries and died on the spot. A police case was registered against him. Wife and sons preferred a claim. The Insurance Company opposed the claim, contending inter alia that the policy covered only third parties and not for the owner's death. The Policy does not contemplate any compensation to the owner from the Company. On the above pleadings, the Tribunal framed following points,

1.Whether the death of the deceased, T.Abdul Rahim is the resultant of the accident due to rash and negligent driving of the vehicle bearing Registration No.AP 02 V 2725 as alleged in the petition?

2.Whether the petitioners are the legal representatives and dependants of the deceased?

3.Whether the petitioners are entitled to the compensation, if so, to what amount and from which of the respondents?

4.To what relief?

Upon evaluation of pleadings and evidence, the Tribunal awarded compensation. Upon perusal of the policy and related cases, the Andhra Pradesh High Court allowed the appeal of the Insurance Company, holding that admittedly, no such additional premium was paid and therefore, the Tribunal was not justified in fastening liability against the Insurance Company.

37. In Ningamma v. United India Insurance Co. Ltd., reported in 2009 (13) SCC 710, the deceased borrowed a Motorcycle from the owner and dashed against the bullocks, without involving any other vehicle. A claim under Section 163-A was made by the legal representatives of the deceased. As the said representatives have stepped into the shoes of the owner of the vehicle, the Supreme Court held that they cannot maintain a claim petition under Section 163-A of the Act. In the same judgment, the Supreme Court further held that even if Section 163-A was not applicable, the High Court ought to have considered the claim under Section 166 of the Motor Vehicles Act and on the above facts of the case, remitted the matter to the High Court. At Paragraphs 14, 21 to 25, the Supreme Court, observed as follows:

14. Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a code by itself. The said provision has been inserted to provide for a new / predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd., v. Rajni Devi reported in 2008 (5) SCC 736, is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.

22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.

23. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.

24. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.

25. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs.

38. On the aspect of 'Just Compensation', the Supreme Court, at Paragraphs 34 to 36, held as follows:

34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not.

35. However, whether or not the claimants would be governed by the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court. While entertaining the appeal, no effort was made by the High Court to deal with the aforesaid issues, and therefore, we are of the considered opinion that the present case should be remanded back to the High Court to give its decision on the aforesaid issues.

36. The High Court was required to consider the aforesaid issues even if it found that the provision of Section 163-A of the MVA was not applicable to the facts and circumstances of the present case. Since all the aforesaid issues are purely questions of fact, we do not propose to deal with these issues and we send the matter back to the High Court for dealing with the said issues and to render its decision in accordance with law.

39. Reading of the above judgment in Ningamma's case (cited supra) makes it clear that even if a claim petition is made under Section 163-A of the Act, as Motor Vehicles Act, 1988, is a beneficial legislation, an injured/legal representatives of the deceased should not be deprived from getting a just compensation, irrespective of the fact, whether there was any pleading or not, with reference to Section 166 of the Motor Vehicles Act and that it is the duty of the Tribunal/Court, to consider the claim.

40. In United India Insurance Company Ltd., v. P.Shanthi @ P.Santhamani and others reported in 2011(1) TN MAC 227 (DB), when the owner of the lorry, parked the vehicle on the road side and was attending to the repairs of the vehicle, the driver, suddenly moved the vehicle and due to his negligence, the owner sustained injuries and despite treatment, died. Legal representatives made a claim for compensation. Opposing the same, the Insurance Company contended that the legal representatives have stepped into the shoes of the owner and therefore, they cannot claim compensation for themselves and in such circumstances, no award should be passed. It was also contended that the policy does not cover the owner. Therefore, the Insurance Company prayed for dismissal of the claim petition. The Tribunal recorded a finding that since premium was paid for the owner's risk, the legal representatives are entitled for compensation and accordingly, quantified the amount. Seeking to set aside the award, the Company filed an appeal before this Court, contending inter alia that the Insurance Company would indemnify the insured, owner of the vehicle, only on the contract of indemnification and that the deceased cannot be treated as a third party to the insurance and hence, the legal representatives are not entitled to make any claim for compensation. The Insurance Company also contended that as per the oral evidence, no additional premium was paid to cover the owner's risk. Per contra, on behalf of the legal representatives, an argument has been advanced that there was nothing wrong in the findings of the Tribunal, when the owner was outside the vehicle, ie., on the road and that he should be considered only as a third party and it was further contended that even though, he was one among the parties to the contract, still, the Insurance Company is liable to pay compensation to the legal representatives.

41. Perusal of the above judgment shows that the main stress of the Insurance Company was that when there was no additional payment of premium, towards the owner's risk, the Company has to be exonerated from its liability from payment of compensation. After referring to Dhanraj v. New India Assurance Co. Ltd., reported in 2004 (4) CTC 716 and Kaliathal v. New India Assurance Co. Ltd., reported in 2004 (1) TNMAC 135 (DB), at Paragraph 7, the Division Bench held as follows:

1. When additional premium was not paid towards bodily injury to the person or death of the owner, the Insurance Company could not be held liable to pay compensation.

2. Neither owner nor his Legal Representatives, in case of his death, could claim compensation from the Insurance Company on a contention that the owner is a third party.

3. Since the insured is indemnified by the Insurance Company for the compensation payable to third parties, there is no scope for the direction to the Insurance Company in the case of bodily injury or death, to the owner, in the absence of payment of additional premium for the said purpose.

42. The Division Bench, after scrutiny of the Policy, oral evidence of RW.2, an official from the Company and on the facts and circumstances of the case, at Paragraphs 8 and 9, further held as follows:

8. It is worthwhile to mention that on a careful scrutiny of the copy of policy in the name of the deceased would show that no additional premium was paid to cover any liability towards bodily injury or death of the owner of the vehicle. In such circumstance, the contention that additional premium was paid for covering the owner's risk could not be countenanced. R.W.2, the official from the Appellant's Insurance Company has categorically stated that no additional premium was paid to cover the risk for the owner. The Tribunal has observed that additional premium has been paid for owner's risk also as admitted by R.W.2. This observation is wrong. R.W.2 has stated unequivocal terms in his chief-examination that no additional premium was paid. In his cross-examination he has stated that an additional premium of Rs.50/- has been paid for the driver and owner. But the said statement is incorrect in view of the entry contained in Ex.R.2 policy. Rs.50/- additional premium has been collected for the purpose of workmen compensation for 2 employees. This additional premium does not cover the owner of the vehicle.

9. The above referred decisions clearly lay down the principle that the insurer is not liable to indemnify the insured unless additional premium is paid to cover liability towards bodily injury or death of the owner of the vehicle. In such a view of this matter, we are of the opinion that the award passed by the Tribunal is not sustainable by means of which liability was fastened on the present Appellant. The Appellant-Insurance Company is not liable to pay compensation to the Legal Representatives of the deceased/owner of the vehicle.

43. In The Branch Manager, The New India Assurance Co.Ltd. Vs. Mahadev Pandurang Patil and Another, reported in ILR 2011 KAR 850, it is held that, "it is settled law that if the Insurer has not collected extra premium, it is not liable to cover the risk of the occupants of the said Jeep. It is worthwhile to extract paragraph 17, which reads thus:

"17. In view of the authoritative pronouncement of the Apex Court holding that an occupant/inmate/passenger in a private car, is not a third party, the finding recorded by the tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set aside." (emphasis supplied) Therefore, it can be seen that, in the instant case, it is not the case of the owner of the offending vehicle that he has paid extra premium to cover the risk of the inmates of the Jeep nor it is established that the Insurer has collected extra premium, covering the risk of the occupants of the Jeep. Hence, having regard to the well settled law laid down in the aforementioned decision, we are of the considered view that the direction issued by Tribunal to the appellant Insurer to indemnify the award cannot be sustained and is liable to be set aside.

44. In Branch Manager, United India Insurance Co. Ltd., v. Ansuiya Devi [M.A.No.480 of 2009, dated 10.05.2011], a claim under Section 166 of the Motor Vehicles Act was made by the legal representatives of the deceased, owner of the motorcycle, which was hit by an unknown truck. Along with the claim under Section 166 of the Act, a petition under Section 140 of the Motor Vehicles Act has also been filed, for interim compensation. The Tribunal passed an order, directing the Insurance Company to pay an interim compensation on, 'No Fault Liability'. The Insurance Company has preferred an appeal against the interim compensation, on the ground that the deceased himself was the insured/owner and that he cannot be a third party and therefore, the company is not liable to pay compensation, as a third party claim. In the appeal, counter affidavit has been filed by the claimants, stating that though the deceased was the owner of the Motorcycle and the said vehicle was insured, covering the risk of life of the owner. Copy of the Insurance Policy was also annexed to the counter affidavit. It was also contended by the legal representatives of the deceased that inasmuch as an additional premium has been paid, covering the risk of life of the owner, the Company is liable to pay compensation to the legal representatives of the deceased. Drawing the distinction between a statutory third party policy and the contractual liability, the Insurance Company contended that for the insurance of contract, a claim cannot be made before the Tribunal. Reliance was also placed on a decision made in Arun B.Khanjire v. Ichalkaranji Urban Co-op. Bank Ltd., reported in 2009 (2) SCC 187, wherein, it has been observed that the owner is not a third party and hence, is not entitled to compensation, if the policy is Act Policy, ie., statutory policy. Observing that the owner is entitled to compensation, when extra premium is paid to cover the risk of owner, on the facts and circumstances of the case, the Patna High Court, at Paragraphs 17 and 19, held as follows:

17. Hence the decision relied upon the learned counsel for the appellant is for proposition that if the policy is only act policy it cover the risk of third party only and in such policy the risk of owner is not covered. However, if the policy covering the risk of third party also covered the risk of owner accepting extra premium for covering the risk of owner, the owner is entitled to compensation as third policy claim under Section 147(1)B. However, under the facts and circumstances of the case at hand the policy is not an act policy but also cover the risk of owner to the extent of Rs. 1,00,000/- and extra premium has been paid for covering the risk of owner.

18. However, learned counsel for the respondent has relied upon decision reported in 2008 (3) TAC page 483 in which the question for consideration was whether Insurance Company is liable for compensation in respect of the claim made by the owner or the representative of the owner as third party claim. Taking into consideration Dhanraj V. New India Assurance Company Limited 2004 (8) SCC 553, 2007 A.C.J. 821 (New India Assurance Company Limited V. Meera Bai and others, 2007 A.C.J. 818 (Oriental Insurance Company Limited V. Jhuma Saha and 1998 A.C.J. 531 held that these cases the policy was act policy and in the act policy the risk of owner and representative or pillion rider is not covered (Amrit Lal Sood and another V. Vaushalya Devi Thapar and others) However it is open to the Insurance Company and insurer to the extent coverage of the Act or statutory policy to bodily injury or death of the insured or even driver or pillion rider. It has further been held that policy is not merely a statutory policy, term of the policy cover the risk of the owner and their legal representative and the claim by kith and kin of the insured regarding death have to be treated as third party cover under Section 147 of the Motor Vehicle Act. covers liability incurred by the insured in respect of death or bodily injured to any other person including the owner. Hence the decision relied upon by claimant respondent held that if policy covered the risk of owner to the extent treated as third party cover.

19. Hence coming to the facts and circumstances of the case, since the policy is admittedly covering the risk of third party also covers the risk of owner of the vehicle and hence cover under Section 147 1 (b) 1 and since it is a beneficial legislation for benefit of the victims and members of their family therefore such provisions are required to be liberally construed and hence I find and hold that since the policy covers the risk of third party as well as also cover the risk of the owner, hence covered under Section 147 (1) b(1) and the claimant are covered under the third party claims and the Tribunal has jurisdiction to grant relief.

45. In Smt.Bhagwati Rawat v. National Insurance Company [A.O.No.102 of 2009, dated 28.07.2011], husband of the 1st appellant lost his life in a Motor Vehicle accident. He was the owner of the vehicle and while he was driving the same, the accident occurred. The vehicle fell into a river due to a technical failure. Legal representatives filed a petition under Section 166 of the Motor Vehicles Act, claiming a sum of Rs.11,00,000/-, against the insurer of the Car, National Insurance Company Ltd. The claim was opposed on the grounds, inter alia, that since the deceased himself was driving the vehicle, the Company need not pay any compensation. The Tribunal framed the following three questions of law, 1. Whether the deceased Ramesh Chandra Singh died in a motor accident caused by rash and negligent driving of vehicle no. UA.07P-6377 by its driver on 22.12.06 at about 7-7.30 a.m. at Paduli, situated within the boundary of P.S. Karanprayag? If so, its effect?

2. Whether the vehicle in question was not being driven in accordance with the terms & conditions of insurance contract, as alleged by O.P. No. 1 in its W.S.? If so, its effect?

3. Whether the claimants are entitled to get any relief or compensation? If so, from whom and to what amount?

46. Upon perusal of the evidence that the owner was insured with the Company, for his Personal Accident Cover and paid compulsory personal accident cover premium of Rs.100/-, besides an additional personal accident cover premium of Rs.250/-, the Tribunal awarded Rs.2,00,000/- limited liability, for personal accident cover to the owner-cum-driver. Not satisfied with the quantum of compensation, the Legal Representatives of the deceased preferred an appeal. Upon considering the pleadings and submissions, the High Court of Uttarakhand at Naintal, held as follows:

Undisputedly in case of owner-cum-driver, it is a contractual liability between the insurer and the insured. As per Insurance Cover Note, the learned Tribunal has given a categorical finding that the risk was covered upto the amount of Rs. 2,00,000/-. Learned counsel for the appellant has argued that the car was also insured for five passengers for which premium was also paid. So far as the risk towards passengers is concerned, the liability of the insurance company to pay the compensation is upto Rs. 1,00,000/- only.

47. In Komeravel Gounder v. Bajaj Allianz General Insurance Company reported in CDJ 2012 MHC 5141, when the owner of a Maruti Car, was driving a vehicle, a dog suddenly crossed the road and in order to avoid the accident, the owner swerved the car to the right side of the road, lost control, the vehicle hit against a tamarind tree and that, he sustained grievous injuries and despite treatment, succumbed to the same. Legal representatives claimed compensation. The company objected to the claim, contending inter alia that the policy covered only third party risks and that therefore, as per the terms of contract, the Insurance Company is not liable to pay compensation to the claimants. Ex.P2 Policy has been filed. Evidence to that effect has been adduced on behalf of the Company. Since no extra premium was paid for personal accident coverage for the owner, the Tribunal held that the Insurance Company was not liable to pay compensation for the death of the injured. However, the Tribunal directed the insurer to pay Rs.50,000/- towards No Fault Liability . Being aggrieved by the same, legal representatives of the deceased preferred an appeal to this Court. On the above pleadings and evidence, a Division Bench of this Court framed two issues for consideration,

1.Whether the Insurance Company is liable to pay compensation for the death of owner-cum-driver?

2.Whether the Insurance Company is right in contending that Ex.B2 Policy does not cover personal accident to the insurer/owner?

48. In the above reported judgment, as per Ex.B2 Insurance Policy, premium of Rs.6,429.81 has been paid towards own damage. Rs.340/- has been paid towards basic TP and Rs.50/- towards TPPD. On the above facts, a Division of this Court, at Paragraph 15, held as follows:
15. Any policy in terms of Section 147 of Motor Vehicles Act covers the liability incurred by the insured 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. Section 147 of the Act does not require an Insurance Company to assume the risk for the death or bodily injury to any person including the occupants carried in the motor car.
49. In the above reported judgment, the Division Bench observed that as per India Motor Tariff (IMT) Endorsements, for "personal accident coverage" to the insured or any named person other than paid driver or cleaner, an additional premium has to be paid. IMT 15, as extracted in Komeravel Gounder's case (cited supra), reads as under:-
"IMT. 15. PERSONAL ACCIDENT COVER TO THE INSURED OR ANY NAMED PERSON OTHER THAN PAID DRIVER OR CLEANER (Applicable to private cars including three wheelers rated as private cars and motorized two wheelers with or without side car [not for hire or reward]) In consideration of the payment of an additional premium it is hereby agreed and understood that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting and dismounting from or traveling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in:
Details of Injury Scale of Compensation

i) Death 100%

ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100%

iii) Loss of one limb or sight of one eye 50%

iv) Permanent Total Disablement from injuries other than named above 100% Provides always that (1) Compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs. ............* during any one period of insurance in respect of any such person.

(2) No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.

(3) Such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person.

Subject otherwise to the terms exceptions conditions and limitations of this policy.

* The Capital Sum Insured (CSI) per passenger is to be inserted."

50. In the above reported case, after considering IMT 15, extracted above, the Division Bench, at Paragraph 17, observed as follows:

17. By careful perusal of Ex.B2-Policy, it is seen that no such additional premium was paid covering death or bodily injury of owner-cum-driver. As per IMT. 15 only if additional premium was paid, as per the printed clause in Ex.B2, the insurer is liable to pay compensation. Without paying such an additional premium, Claimants cannot invoke the clause printed in Ex.B2-Policy.

51. Needless to state that in the above judgment, the compensation, restricting to Rs.50,000/- under "No Fault Liability", has been awarded, only on the ground that there was no additional premium paid, as per IMT 15. Had the premium been paid, the compensation amount that would have been awarded to the legal representatives, would be, as per the limit provided for, in the personal accident cover.

52. Reading of the Division Bench judgment in United India Insurance Company Ltd., v. P.Shanthi @ P.Santhamani and others reported in 2011(1) TN MAC 227 (DB), makes it clear that had the owner of the vehicle taken a contract of insurance, paid an additional premium to cover the owner's risk towards bodily injuries to the person or death of the owner, the Insurance Company cannot escape from its liability to pay compensation to the owner or the legal representatives of the deceased, as the case may be.

53. Reverting back to Komeravel Gounder v. Bajaj Allianz General Insurance Company reported in CDJ 2012 MHC 5141, upon perusal of Ex.B2 Policy, the Division Bench has also found that the premium paid was only for the own damage of the vehicle. Under Act only policy, the liability to the third party is unlimited. But under Comprehensive Insurance Policy, the owner can claim the amount, for the loss of damage suffered, to be the estimated value, calculated under the Rules and Regulations and insofar as the owner is concerned, a separate premium has to be paid and since no additional premium was paid, for payment of compensation under the Policy taken, for the death of the owner, who met with an accident, the claimants were paid only Rs.50,000/- under Section 140 of the Motor Vehicles Act (No Fault Liability).

54. From the judgments extracted supra, it is manifestly clear that if the owner-cum-driver takes a personal accident cover policy, then he can maintain a claim against the insurer for compensation and in the event of death, the legal representatives can maintain a claim for compensation, provided they satisfy the terms and conditions of the Personal Accident Cover Policy.

55. In the light of the decisions, stated supra, whenever an accident occurs, as to whether the vehicle is on road, driven, repaired, parked, kept stationary or left in an unattended condition of vehicle in question or involved in accident, the injured is entitled to make a claim for compensation under Section 163-A or 166 of the Motor Vehicles Act, depending upon the income. All that is required is the use of vehicle and that an accident should have occurred. The expression, "accident arising out of and use of motor vehicle" has been explained in the earlier paragraphs of this Judgment. As the respondent, being the owner, has already paid a sum of Rs.100/- as additional premium under the Personal Accident Cover, to cover the death or bodily injuries to the owner-cum-driver, where the liability is limited, upto Rs.2 Lakhs, the insurer is liable to pay compensation. However, in the case on hand, the Claims Tribunal has awarded compensation of Rs.1,65,000/-, with interest at the rate of 7.5% per annum.

56. In the accident, the respondent has sustained fractures of 2 to 8 ribs in the left side of the chest. Immediately, after the accident, he has been provided First Aid in Government Hospital, Komarapalayam and thereafter, taken further treatment in Government Hospital, Erode. After discharge from the Government Hospitals, he has taken inpatient treatment in Sree Gokulam Hospital, Salem for a period between 29.09.2009 and 08.10.2009.

57. PW.2, Doctor, who clinically examined the respondent/claimant, with reference to medical records, has deposed that at the time of accident, he had noticed swelling in the left chest. The respondent/claimant has sustained fracture of ribs 2 to 8. The expansion of the chest was reduced by 2 Cms. The rib bones were damaged. Considering the physical infirmity and discomfort, noticed at the time of clinical examination, PW.2, Doctor, has assessed the disability at 28% and issued Ex.P14 Disability Certificate.

58. However, considering the submission of the learned counsel for the Insurance Company and the likelihood of variation, in the assessment between one Doctor and another, the Tribunal has reduced the percentage of disability to 25% and awarded Rs.50,000/- towards disability compensation (Rs.2,000/- per percentage of disability). Considering the nature of injuries, fracture of ribs and the age of the owner-cum-driver, 45 years old, the disability compensation, awarded by the Claims Tribunal cannot be said to be excessive.

59. For pain and suffering, the Tribunal has awarded Rs.15,000/-. For nutrition, the Claims Tribunal has awarded Rs.10,000/-. Though the respondents has produced Ex.P4 Medical Prescriptions, Exs.P5 and P11 Medical Bills to the tune of Rs.1,01,956.11 and Rs.463.50 respectively and Ex.P6 C.T.Scan Report, the Tribunal has awarded Rs.1,00,000/- towards medical expenses incurred. Rs.5,000/- each, has been awarded for transportation and attendant charges respectively. Though the Tribunal has quantified the total compensation as Rs.1,87,000/-, without assigning any reason, has awarded only Rs.1,65,000/-. The quantum of compensation awarded under the abovesaid heads, cannot be said to be excessive, as they are duly supported by Ex.P3 Wound Certificate, Ex.P4 Medical Prescriptions, Exs.P5 and P11 Medical Bills, Ex.P6 C.T.Scan Report, Ex.P10 O.P.Chit, Ex.P12 Trip Sheet, Exs.P13 and P14 X-Ray and its receipt and Ex.P15 Disability Certificate. The Claims Tribunal has not committed any manifest illegality, in awarding the quantum of compensation.

60. The only contention that remains to be considered, is whether the Claims Petition has to be dismissed, on the ground that the claimant, is none other than the owner of the said vehicle and when the claim petition has been made, only against the Insurance Company. The said issue has been answered in a recent decision of this Court in United India Insurance Co. Ltd., v. K.Paruvatham reported in 2012 (1) TNMAC 111, wherein, for the death of her husband, wife made a claim petition under Sections 166 and 147 of the Motor Vehicles Act, 1988. At the time of accident, he was travelling in a car, which dashed against a stationary vehicle. The claimant was the owner of the vehicle. The Insurance Company alone was prosecuted. The liability of the company was disputed, on the ground that being the legal heir, she has stepped into the shoes of the insured and therefore, as per the decision in Oriental Insurance Co. Ltd., v. Sunita Rathi reported in 1998 ACJ 121, it was contended that as per the policy, the legal representatives cannot claim compensation. Per contra, the respondent therein has contended that inasmuch as the policy involved in the abovesaid reported case, was a comprehensive policy, the Insurance Company cannot repudiate the claim. Reliance was also placed on the following decisions, (i) New India Assurance Co. Ltd. v. Kendra Devi and others, 2008 (1) TN MAC 67 (SC): 2008 (1) CTC 430;

(ii) Oriental Insurance Co. Ltd. v. Jhuma Saha and others, 2007 (2) TN MAC 56 (SC) : 2007 ACJ 818;

(iii) New India Assurance Co. Ltd v. Meera Bai and others, 2007 ACJ 821; and

(iv) Dhanraj v. New India Assurance Co. Ltd. and another, 2004 (2) TN MAC 144 (SC) : 2005 ACJ 1.

61. My esteemed Brother, Hon'ble Mr. Justice G.M.Akbar Ali, has framed following point for consideration. Whether being the dependant/legal representatives of the deceased, the insured herself can maintain a claim petition against the insurer. After considering the decisions, stated supra, at Paragraphs 22 to 24, held as follows:

22. If there is a personal accident coverage, the Insurance Company is liable. However, the above referred case laws and discussions relate to the death or bodily injury of the owner/insured. The question before this Court is whether a owner can maintain a claim as a legal heir of the deceased who died in an accident involving the insured vehicle. The contention of the Insurance Company is that the liability under Section 163-A of Motor Vehicles Act is on the owner of the vehicle as a person and the Claimant cannot be both a Claimant as also the recipient.

23. However, Section 166 deals with just compensation to a Claimant who is entitled to file a Claim Petition for the death of the bread winner or for the bodily injury of the Claimant. Section 147 deals with requirement of policy and limits of liability. The liability of the Insurance Company is to the extent of indemnification of the insured against a third person. If the insured can be fastened with any liability the Insurer is liable to indemnify the insured. For the death of a passenger, if covered by the Policy of the insurance, the insured is liable and therefore, the Insurance Company is liable to indemnify the insured. In my considered view, the insured, "as a person" being the legal heir of the deceased, in a "different capacity" is entitled for the compensation under Section 166 of the Act. In that event, in my considered view, the Insurance Company cannot escape from indemnifying the insured simply because the insured happens to be the recipient. In a simple analogy, had there been any other legal heir apart from the insured, they would maintain a claim for compensation as they are entitled for compensation. Therefore, the insured being the sole legal heir/dependant in a dual capacity is entitled to be indemnified by the Insurance Company and is also entitled to be a recipient of such claim.

24. It is also pertinent to note that in a comprehensive Policy of Insurance if the personal accident of the owner is covered the legal heirs of the owner can maintain a claim. On the same analogy, the owner/insured being the legal heir of the deceased/passenger, who is covered under the Policy is also entitled for a just compensation under Section 166 of the Act.

62. It is worthwhile to extract decisions considered in K.Paruvatham's case, as follows:

14. This has been reiterated in Oriental Insurance Co. Ltd v. Sunita Rathi and others, 1998 ACJ 121, by the Apex Court, wherein it has been held as follows:

"3......... The liability of the Insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance..."

15. In New India Assurance Co. Ltd v. Meera Bai and others, 2007 ACJ 818, the Apex Court had an occasion to deal with the liability of the Insurance Company when the owner/insured himself was an injured in the accident. In that case, the owner himself was driving the vehicle and sustained injury. The Apex Court held that the owner is not covered under the policy and therefore, the Insurance Company is not liable.

17. In Dhanraj v. New India Assurance Co. Ltd and another, 2004 (2) TN MAC 144 (SC) : 2004 (4) CTC 716 (SC) : 2005 ACJ 1, the question arose was whether the Insurance Company was liable for the death or bodily injury sustained by the owner/insured and the Apex Court held that the Insurance Company is not liable and held as follows:

"18. 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".

However, it is also observed, "10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself We are unable to accept the contention that the premium of Rs.4,989 paid under the heading 'own damage' is for covering liability towards personal injury. Under the heading 'own damage', the words 'premium on vehicle and non-electrical accessories' appear. It is, thus, clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance."

Therefore, if there is any personal accident insurance which is otherwise known as 'P.A. coverage', an owner of a vehicle can maintain a Claim Petition.

18. In Oriental Insurance Co. Ltd v. Jhuma Saha and others, 2007 (2) TN MAC 56 (SC): 2007 ACJ 818, it is held that, "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 Motor Vehicles Act, the question of the Insurer being liable to indemnify insured, therefore, does not arise."

19. However, in Oriental Insurance Co. Ltd. v. Jhuma Saha and others, 2007 (2) TN MAC 56 (SC) : 2007 ACJ 818, the Hon'ble Supreme Court has also referred a decision reported in Dhanraj v. New India Assurance Co. Ltd and another, 2004 (2) TN MAC 144 (SC) : 2004 (4) CTC 716 (SC) : 2005 ACJ 1, and observed as follows:

"13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(l)(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case".

20. In New India Assurance Co. Ltd v. Kendra Devi and others, 2008 (1) TN MAC 67 (SC) : 2008 (1) CTC 430, is a case where compensation for the death of the owner cum driver was awarded against the Insurance Company by the Tribunal which was upheld by the High Court, the Apex Court held as follows:

"6. The only contention of the learned Counsel for the Appellant-Insurance Company, is that inasmuch as the Insurance Policy was issued for paid driver and not for owner who also happened to drive the vehicle himself at the time of the accident. In support of his contention, learned Counsel drew our attention to the Insurance Policy (Annexure P-3). Perusal of the Schedule of Premium mentioned in the Insurance Policy, shows that apart from liability to public risk, the owner has paid premium only for paid driver and/or conductor. By contending that in the case on hand, the deceased being the owner-cum-driver and without additional premium/coverage for owner-cum-driver, the Insurance Company is not liable to pay any compensation for death of the deceased who was owner-cum-driver and not paid driver as mentioned in the Schedule of Premium. In support of his contention, learned Counsel for the Appellant heavily relied on Section 147 of the Motor Vehicles Act, 1988 which speaks about the statutory liabilities and a decision of this Court in New India Assurance Co. Ltd. v. Meera Bai andOrs., 2006 (9) SCC 174".

63. In the light of the decision in United India Insurance Co. Ltd., v. K.Paruvatham reported in 2012 (1) TNMAC 111, the objection of the National Insurance Company Ltd., that the owner cannot maintain a claim, against the Company, in a case of comprehensive policy, cannot be countenanced. In view of the above decisions and discussion, the appeal filed by the appellant-Insurance Company is dismissed. The appellant-Insurance Company is directed to deposit the award amount with accrued interest and costs, to the credit of M.C.O.P.No.509 of 1999 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Sankari, within a period of six weeks from the date of receipt of a copy of this order. On such deposit being made, the respondent/claimant is permitted to withdraw the same, by making necessary applications before the Tribunal.
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