- (1.) This appeal has been filed by the appellant-New India Assurance Co.Ltd. against the award dated 11/5/2002 passed by the Motor Accident Claims Tribunal, Jhunjhunu whereby a sum of Rs.4,37,500/- has been awarded as compensation.
(2.) The accident took place on 4/10/1997, due to head-on collusion between Jeep No.RJ-18C-2087 and Bus No.RJ-18P-0638. Shri Ram Singh jeep driver also happened to be owner of the jeep, who died in that accident. The jeep was insured with the appellant-New India Assurance Co.Ltd. It was comprehensive policy, which also covered the damage to the vehicle and the risk of passengers as also the 3rd party risk. Tribunal has held it to be a case of contributory negligence to the extent of 25% on the part of deceased-jeep driver Shri Ram Singh and 75% on the part of bus-driver Bhawani Singh and has held both the insurance companies i.e. New India Assurance Co.Ltd.-appellant and National Insurance Company-respondent No.7 liable to indemnify the respective owners for payment of compensation. The National Insurance Company was directed to indemnify the owner of the Bus to make payment of compensation to the claimants.
(3.) Shri Vinod Tyagi, learned counsel for the appellant-insurance company has cited the judgment of Supreme Court in Dhanraj Vs. New India Assurance Co. Ltd. & Anr., 2005 ACJ 1 and argued that controversy in that case was identical to the one in the present case. The policy in that case also did not cover the risk for injury to owner. Premium charges for "own damage" was clarified by the words "premium on vehicle and non-electrical accessories" thus, it was held to cover only damage to the vehicle and not the injuries on the person of the owner. It was argued that the agreement of the insurance was between the jeep-owner and the appellant insurance company and owner of jeep Shankar was not party to the proceedings before the Tribunal, therefore the appellant-insurance company cannot be held liable to indemnify the owner of the jeep to make payment of compensation to the claimants. It could be required to pay compensation arising out of the death or injury claim on account of use of motor vehicle or damage to any property of a third party. The appellant insurance company cannot therefore be expected to indemnify the owner himself, who was driving the jeep at the time of accident because he cannot be termed as third party and on the same analogy, in the scope of proceedings in a motor accident claims case, claimants could not be awarded compensation for the loss caused to the vehicle for which they were required to follow the ordinary procedure meant for the purpose. If his claim was about damage to vehicle not honoured or paid, he should have approached the District Consumer Redressal Forum under the Consumer Protection Act. Learned counsel for the appellant argued that respondent insurance company ought to have been required to pay even the damages caused to the jeep, for which the bus-owner or its Insurance company should have been held liable because they failed to show that the policy of the bus was not comprehensive policy. Learned counsel argued that Tribunal held it to be a case of contributory negligence because of the compromise arrived at between two insurance companies in other Claim Case Nos.20/1998 & 22/1998, whereat they agreed to pay compensation to the extent of 25% & 75%, respectively but that was a case of composite negligence in claim petition filed for death/injury of passengers, where appellant insurance company could not avoid answering its liability. But in the event of contributory negligence when the question comes to indemnify the owner, appellant insurance company cannot be saddled with the liability to pay compensation to the owner himself for his own negligence because claimants after the death of jeep-owner Ram Singh stepped into his shoes and therefore owner of the jeep cannot be required to pay the compensation. It was argued that the entire liability of making payment of compensation to the claimants ought to have been on the respondent insurance company if this court holds that the whole negligence was on the part of bus-driver Bhawani Singh and not on jeep-driver Ram Singh and that the jeep-driver was not at all negligent.;