- (1.) J. C. S. Rawat, J. This appeal has been filed by the claimants under Section 173 of the Motor Vehi cles Act, 1988 against the judgment and order dated 10-07-2003 passed by Motor Accident Claims Tribunal/district Judge, Nainital in Claim Petition No. 20 of 2001, Smt. Dhani Devi and three others versus the New India Assurance Company Limited, by which the claim petition was dismissed by the Motor Accident Claims Tribunal.
(2.) BRIEF facts of the case giving rise to this appeal are that on 05-09-2000 Deewan Giri (deceased) was going from Bheemtal to Devidhura alongwith his friends and family members by his vehicle Jeep No. Up 2d/4317. When the said Jeep reached near Padampuri, due to rash and negligent driving of the driver of Jeep, he lost the control over the Jeep as a result of which the said Jeep fell in to deep Khud. All the pas sengers of the Jeep sustained injuries The deceased Deewan Giri also sus tained injuries and he got admitted for treatment in P. H. C. Bhimtal and there after he got admitted in Krishna Nurs ing Home, Haldwani, from where he was taken to Delhi for better treatment. Due to grievous injuries Deewan Giri died on 08-10-2000. He was 50-year-old at the time of accident and was Government contractor. He was earn ing Rs. 10,000/- per month from that profession. The claimants, who are le gal heirs and dependents of the de ceased, filed the claim petition for com pensation for the loss suffered due to death of deceased Deewan Giri. 2 Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech The opposite party/insurance company contested the case before the Motor Accident Claims Tribunal (here inafter referred to as the Tribunal ). In its written statement the insurance com pany did not dispute the insurance of the offending vehicle with it. Several al legations were denied due to lack of knowledge. In additional pleas the in surance company alleged that the com pany is not responsible to pay the com pensation to the third party. On the pleadings of the parties, the Tribunal framed the necessary is sues. Both the parties adduced their oral as well as documentary evidence. The Tribunal after appreciating the evi dence dismissed the claim petition on the ground that the deceased does not come within the category of third party risk because he as owner of the vehi cle and he himself was driving the ve hicle at the time of accident. Under the conditions of the insurance policy the insurance company cannot be held li able for payment of compensation to the owner of the vehicle who himself was driving the vehicle at the time of accident. Feeling aggrieved, the claim ants have come up in this appeal.
(3.) WE have heard Sri G. B. Pandey, learned counsel for the claimants and Sri R. B. Agarwal, learned counsel for the respondent/insurance company. Learned counsel for the appellants con tended that in the cover note issued by the Insurance Company, Rs. 1080/- has been charged for nine passengers and a sum of Rs. 5278/- has been charged for the own damages of the vehicle and additional premium of Rs. 1443/- and Rs. 850/- has also been taken as an ad ditional premium from insured. It was further contended that the Insurance Company has taken the premium for obtaining an additional risk of the per sonal accident in policy, as such the company is liable to pay the compen sation to the claimants. It was further contended that the trial court has erred in holding that the deceased was not holding the licence at the time of acci dent and the Insurance Company is not liable for payment of compensation. It was contended on behalf of the Insurance Company that the owner of the vehicle exchanged his vehicle from Maxi Cab to economic vehicle and the amount already paid was ad justed in new vehicle by paying Rs. 1984/ -. The extra premium was of the new vehicle. It was further contended that on the date of accident the per sonal accident of the owner of the ve hicle was not insured. The policy, which is filed alongwith supplementary affida vit, does not indicate that any amount was paid towards the personal insur ance of the deceased. In his evidence D. W. I Sri S. S. Kausyal has accepted that the cover note has been issued by the Insurance Company and a sum of Rs. 1443/- and Rs. 8507- has also been taken as additional premium from the insured. He has not admitted that this sum was taken as an amount as a personal insurance of the owner of the vehicle in question. The cover note does not indicate that the said amount was taken for the personal insurance of the passenger. As such the contention of the learned counsel for the appellant is devoid of merit. 3 Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech;