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M/s. National Insurance Co. Ltd., Basheerbagh, Hyderabad through local branch at Khammam v/s F.R. Phillip


    M.A.C.M.A. No. 1966 of 2006

    Decided On, 11 March 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE K. LAKSHMAN

    For the Appellant: G. Vishweshwar Reddy, Advocate. For the Respondent: S.R. Cherukuri, Advocate.



Judgment Text


1. Assailing the Award and decree dated 26.04.2006 in M.V.O.P. No.370 of 2002 passed by the Motor Accidents Claims Tribunal - IV Additional District Judge (Fast Track Court - III), Khammam (for short ‘the Tribunal’), appellant - Insurer filed the present appeal.

2. Vide the aforesaid award, the Tribunal has awarded an amount of Rs.32,000/- towards compensation against the appellant - respondent viz., M/s. National Insurance Company Limited with interest @ 7.5% per annum thereon for the damages caused to Ford Ikon Car bearing registration No.AP 20F 4747 belongs to respondent - claim petitioner.

3. Heard the learned counsel for the appellant - Insurer and the learned counsel for respondent - claimant.

4. It is the contention of the learned counsel for the appellant - Insurer that the Insurer is not liable to pay compensation since owner of the vehicle cannot claim any compensation for own damage. According to the learned counsel for the appellant, the respondent is not a third party as per the provisions of the Motor Vehicles Act, 1988. It is his further contention that respondent - claimant cannot invoke the provisions under the M.V. Act, 1988 and if at all the respondent is having any grievance with regard to the damage to his own vehicle, he has to approach proper forum like Ombudsman or Consumer Forum etc. According to him, the Tribunal without considering the said aspects awarded the compensation fixing the liability on the appellant.

5. On the other hand, supporting the award, the learned counsel for the respondent would contend that on consideration of the material on record, the Tribunal gave a specific finding that the accident was due to rash and negligent driving of the driver of the un-known vehicle. With the said findings, the Tribunal by referring the documents and also depositions, has awarded an amount of Rs.32,000/- with interest @ 7.5% per annum thereon from the date of petition till the date of payment towards damage caused to the vehicle. According to him, the Tribunal did not commit any error warranting interference by this Court in the present appeal.

6. On the analysis of the entire evidence, the Tribunal gave a finding that the accident was due to rash and negligent driving of the driver of the unknown vehicle. In the absence of contra evidence, there is no dispute with regard to the accident and damage to the vehicle of the respondent.

7. The appellant - Insurer filed Ex.B1 - policy. The said policy is a “Comprehensive Policy IXI - Private Car”. Section - 1 of the said policy deals with “loss or damage”, and as per the same, the Insurance Company will indemnity the insured against loss or damage to the Motor Car and/or its accessories whilst thereon. Clause (f) of the said Section deals with ‘by accidental external means’. It is also relevant to note that as per the said policy, an amount of Rs.50/- was paid by the respondent towards third party damages - unlimited, and for employees (vehicle) an amount of Rs.15/- was paid.

8. In the present case, on 09.05.2001, at about 9.00 p.m., near Kodad Cross roads, Khammam, an unknown vehicle hit the car and left the place. In the said accident, the car of the respondent was badly damaged on its right portion, apart from other parts. According to the learned counsel for the respondent - claimant, the claimant spent an amount of Rs.40,380/- towards repairs of the car.

9. The accident was reported to the Local Branch of the appellant and the damaged vehicle was surveyed by the Licensed Surveyor of the Insurer. According to the respondent - claimant, he has informed the accident to the local branch of the appellant and requested them to pay the damages caused to the vehicle in view of Ex.B1 policy which was in force as on the date of the accident. But, there is no response from the local branch of the insurer. It is the further contention of the learned counsel for the respondent that the respondent has also issued a legal notice and the local branch office of the appellant received and acknowledged the same vide Ex.A6 postal acknowledgment. Despite receiving and acknowledging the legal notice, the local branch office of the appellant neither paid the compensation towards damages to the respondent nor responded to the said notice. Therefore, he filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.40,380/- on account of damage caused to the car bearing No.AP 20F 4747 (Fort Ikon).

10. In view of the above stated facts and also on perusal of the deposition of PWs.1 and 2, Ex.A1 - survey report, Ex.A7 - attested copy of panchanama and Ex.A8 - photographs it is not in dispute about occurring of the accident and causing damage to the vehicle. The accident was due to hit of the vehicle belonged to the respondent by an unknown vehicle. There is no contra evidence contrary to the same. Therefore, the accident was due to rash and negligent driving of the driver of the unknown vehicle. Due to the said impact, the vehicle belongs to the respondent got damaged. Therefore, Ex.B1 policy covers the loss caused to the respondent, owner of the vehicle for damages to the vehicle since it is a comprehensive policy. Therefore, the respondent - claimant is entitled for compensation towards damage to his vehicle. But, the question that falls for consideration is, whether the respondent - claimant, owner of the vehicle is entitled to invoke the provisions of M.V. Act claiming damages to his own vehicle under Ex.B1 policy.

11. As discussed supra, Ex.B1 is a comprehensive policy and accident is not in dispute. Damage to the vehicle of the respondent is also not in dispute. According to the respondent, he has spent an amount of Rs.40.380/- towards repairs of the said car. Despite specific request, both oral and by way of legal notice - Ex.A5, the local branch office of the appellant did not pay the compensation to him. Therefore, he has approached the Tribunal by filing an application under Section 166 of the Act.

12. It is relevant to note that the Motor Vehicles Act, 1988 is a benevolent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for the loss. It is also relevant to note that Section 165 of the Act deals with ‘Claims Tribunals’ which is as under:

165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

Explanation.—For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 and section 163A.

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he—

(a) is, or has been, a Judge of a High Court, or (b) is, or has been a District Judge, or

(c) is qualified for appointment as a High Court Judge or as a District Judge or as a District Judge

(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.”

13. It is also relevant to extract Section 166 of the Act which deals with ‘application for compensation’, which is as under:

“166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made,-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.”

14. As per clause (b) of sub-section (1) of section 166 of the Act, 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 owner of the property. The respondent - claimant filed the claim application under Section 166 of the Act before the Tribunal. Despite taking a specific plea by the appellant - Insurer with regard to the maintainability of the application under Section 166 of the Act by the claimant claiming compensation towards damages to his car, the Tribunal without giving a specific finding with regard to the same awarded compensation of Rs.32,000/- fixing liability on the Insurer.

15. The property mentioned in Section 166 (1) (b) of the Act is not the property belongs to the owner of the vehicle. The owner of the property mentioned in the said provision is, owner of the goods etc., being carried in the vehicle, it cannot said to be construed that owner of a vehicle whose vehicle got damaged in the accident by an unknown vehicle. The owner of the property mentioned in Section 166 (1) (b) of the Act is a third party, but not himself. The property mentioned in Section 166 (1) (b) of the Act is the property suffered by a third party but not by owner of the vehicle. The Tribunal without considering the said aspects and without giving any reason, awarded an amount of Rs.32,000/- towards compensation to the respondent - appellant for damages caused to this vehicle under Section 166 of the Act.

16. The Apex Court had an occasion to deal with the issue of third party and maintainability of application filed under the provisions of M.V. Act, 1988 seeking compensation by the owner and also with regard to the issue of pay and recovery in National Insurance Co. Ltd., v. Ashalata Bhowmik (2018) 9 SCC 801). In the said case, the deceased himself was the owner-cum-driver of the offending vehicle. He was not a third party within the meaning under the provisions of M.V. Act. The accident had occurred due to negligence of the deceased. Therefore, the Apex Court categorically held that the deceased was the victim of his own action of rash and negligent driving within the meaning of the M.V. Act and cannot maintain a claim on the basis of his own fault or negligence. It further held that the claimant cannot argue that even when he himself may have caused the accident on account of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company to pay for the same. Therefore, the claimant could not have maintained the claim petition filed under Section 166 of the Motor Vehicles Act.

17. The learned counsel for the appellant relied on the principle held by the Apex Court in National Insurance Co. Ltd., v. Laxmi Narain Dhut (2007) 3 SCC 700). In the said case, the Apex Court discussed about the principle held in National Insurance Co. Ltd. v. Swaran Singh (2004 (3) SCC 297) regarding third party risk etc. The facts of the said case are entirely different to the facts of the present case and, therefore, the principle held by the Apex Court is not applicable.

18. The learned counsel for the respondent - claimant also relied upon the principle held in Oriental Insurance Co. Ltd., v. Rajni Devi (2008 (4) ALD 34 (SC). In the said case also, the Apex Court considering the issue of extent of liability of Insurer in case third party involved. The facts in the said case are different from that of the case on hand. Therefore, the said principle is also not applicable to the facts of the present case. He also relied upon the decision of the Apex Court in Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553). In the said case also, the Apex Court considered the own damage and premium on vehicle etc. The facts of the said case are different from the fac

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ts of the present case including the nature of accident, premium etc. Therefore, the principle held therein is also not applicable to the facts of the present case. 19. In view of the above principle and also in view of the above said discussion, the application filed by the respondent - claimant under Section 166 of the Act vide M.V.O.P. No.370 of 2002 seeking compensation towards damages to his own vehicle is not maintainable. However, as discussed supra, the accident is not in dispute. The damage is also not in dispute, and Ex.B1, policy is a comprehensive policy. The respondent - claimant is entitled for damages to his own vehicle. But, he cannot invoke the provisions of M.V. Act and the application filed under Section 166 of the Act is not maintainable. Thus, the proper forum to the respondent claiming damages to his own vehicle is ‘Ombudsman’ of the appellant - Insurer or Consumer Forum. 20. In view of the above said finding, the award and decree, dated 26.04.2006, in M.V.O.P. No.370 of 2002, passed by the Tribunal is liable to be set aside, and accordingly it is set aside as not maintainable. 21. In the result, the appeal is allowed. However, liberty is given to the respondent - claimant to approach either Ombudsman of the appellant - Insurer or the Consumer Forum or Insurance Company once again claiming damages to his own vehicle. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.
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