NATIONAL INSURANCE CO. LTD.versusASHALATA BHOWMIK AND ORS.

                       [2018] 10 S.C.R. 871                             871


               NATIONAL INSURANCE CO. LTD.                              A
                                 v.
               ASHALATA BHOWMIK AND ORS.
                   (Civil Appeal No.9100 of 2018)
                         AUGUST 31, 2018                                B
        [N.V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Motor Vehicles Act, 1988 – s.166 – Fatal accident – Victim
while driving his vehicle met with an accident and died – Claim
petition u/s.166 – Tribunal granted compensation of Rs.10,57,800/- –
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High Court upheld the compensation determined by the Tribunal –
On appeal, held: The accident had occurred due to the harsh and
negligent driving of the deceased – No other vehicle was involved
in the accident – Deceased was himself responsible for the accident –
Deceased being the owner of the offending vehicle was not a third
party within the meaning of the Act – A Claimant cannot maintain a      D
claim on basis of his own fault or negligence – Thus, respondents
being LRs of the deceased could not have maintained the claim
petition u/s.166 of the Motor Vehicles Act – However, since the
indemnification extended to personal accident of the deceased
limited to Rs.2,00,000/- under the contract of insurance, the
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respondents entitled to the said amount towards compensation.
      Allowing the appeal, the Court
       HELD: 1. It is an admitted position that the deceased was
the owner-cum-driver of the vehicle in question. The accident
had occurred due to the rash and negligent driving of the vehicle       F
by the deceased. No other vehicle was involved in the accident.
The deceased himself was responsible for the accident. The
deceased being the owner of the offending vehicle was not a third
party within the meaning of the Act. The deceased was the victim
of his own action of rash and negligent driving. A Claimant, cannot
maintain a claim on the basis of his own fault or negligence and        G
argue that even when he himself may have caused the accident
on account of his own rash and negligent driving, he can
nevertheless make the insurance company to pay for the same.
Therefore, the respondents being the LRs of the deceased could
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                                871
872             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     not have maintained the claim petition filed under Section 166 of
      the Motor Vehicles Act. [Para 7] [874-B-D]
            2. The High Court was not justified in directing the
      appellant/insurer to pay the compensation determined by the
      Tribunal. Since the indemnification extended to personal accident
B     of the deceased is limited to Rs. 2,00,000/- under the contract of
      insurance, the respondents are entitled for the said amount
      towards compensation. Hence, the appellant is directed to deposit
      the said sum of Rs. 2,00,000/- with interest @ 9 per cent per
      annum. [Para 9] [875-A-B]
C          Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt) and Ors.
           (2007) 9 SCC 263 : [2007] 1 SCR 979 – referred to.
                               Case Law Reference
      [2007] 1 SCR 979                   referred to                   Para 8

D           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9100
      of 2018.
            From the Judgment and Order dated 15.03.2017 of the High Court
      of Tripura, Agartala in MAC AP No. 25 of 2015.
            K. K. Bhat for Ranjan Kumar Pandey, Adv. for the appellant.
E
            Ms. Nidhi, Adv. for the respondents.
            The Judgment of the Court was delivered by
            S. ABDUL NAZEER, J. 1. Leave granted.
             2. National Insurance Co. Ltd. has filed this appeal challenging
F     the judgment and order in MACAP No.25/2015 dated 15th March, 2017
      whereby the High Court of Tripura at Agartala has directed the appellant-
      insurer to pay the compensation to the respondents awarded by the Motor
      Accidents Claims Tribunal, West Tripura, Agartala (for short ‘the
      Tribunal’) in a sum of Rs.10,57,800/- with interest at the rate of 8% per
G     annum from the date of filing of the claim petition till the date of payment.
            3. The first respondent is the mother of deceased Dilip Bhowmik.
      The second respondent is his wife and respondent Nos. 3 and 4 are his
      children. On 20.5.2012 at about 7.00 p.m. Dilip Bhowmik was returning
      from Kathaltali to his house by driving his vehicle bearing No. TR-01-U-
H     0530. When he reached near the bridge of Agartala Railway Station
NATIONAL INSURANCE CO. LTD. v. ASHALATA BHOWMIK                             873
          AND ORS. [S. ABDUL NAZEER, J.]

situated on the bye-pass under Amtali police station, he met with an        A
accident and sustained grievous injuries on his person. He was initially
rushed to Dr. B.R. Ambedkar Memorial Teaching Hospital, Hapania.
Thereafter, he was referred to AGMC and GBP hospital, Agartala, where
he was declared dead. At the time of the accident he was aged 43
years. The respondents alleged that the deceased was a businessman
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and his monthly income was Rs.15,000/-. They filed a claim petition
seeking compensation amounting to Rs.68,15,000/-. The claim petition
was opposed by the appellant-insurer. The Tribunal passed an award
granting total compensation in a sum of Rs. 10,57,800/-.
      4. The appellant challenged the said award of the Tribunal before
the High Court mainly contending that the deceased himself was the          C
owner-cum-driver of the offending vehicle. He was not a third party
within the meaning of the Motor Vehicles Act, 1988 (for short ‘the Act’).
The accident had occurred due to the negligence of the deceased.
Therefore, the appellant, being insurer of the vehicle, was not liable to
pay the compensation.                                                       D
       5. The High Court accepted the contention of the appellant that
the deceased was not a third party and that the accident had occurred
due to the rash and negligent driving of the offending vehicle. However,
the High Court directed the appellant to pay the compensation with a
rider that the said order shall not be treated as a precedent. On perusal   E
of the policy of the insurance, the High Court in the course of the order
observed that indemnification extended to personal accident of the owner-
cum-driver was limited to the extent of Rs.2,00,000/-. The finding of
the High Court on this question is as under:
       “As it has been established by the claimant-respondents that the     F
       premium was paid for the personal accident the insurance
       company is liable to pay the said compensation, even though it is
       limited to Rs.2,00,000/- to the claimant-respondents. There is no
       challenge, however, against the determination of the
       compensation.”
                                                                            G
       6. Learned counsel for the appellant has contended that the
deceased himself was driving the offending vehicle and has caused the
accident. No other vehicle was involved in the accident. He cannot be
treated as a third party. Therefore, the High Court has rightly held that
the claim petition filed by the respondents was not maintainable. In view
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874             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     of this finding, the High Court was not justified in directing the appellant
      to pay the compensation. Learned counsel appearing for the respondents,
      on the other hand, has sought to justify the impugned order.
             7. We have carefully considered the submissions of the learned
      counsel made at the Bar and perused the materials placed on record. It
B     is an admitted position that the deceased was the owner-cum-driver of
      the vehicle in question. The accident had occurred due to the rash and
      negligent driving of the vehicle by the deceased. No other vehicle was
      involved in the accident. The deceased himself was responsible for the
      accident. The deceased being the owner of the offending vehicle was
      not a third party within the meaning of the Act. The deceased was the
C     victim of his own action of rash and negligent driving. A Claimant, in our
      view, cannot maintain a claim on the basis of his own fault or negligence
      and argue that even when he himself may have caused the accident on
      account of his own rash and negligent driving, he can nevertheless make
      the insurance company to pay for the same. Therefore, the respondents
D     being the LRs of the deceased could not have maintained the claim
      petition filed under Section 166 of the Motor Vehicles Act.
            8. This Court in Oriental Insurance Co. Ltd. v. Jhuma Saha
      (Smt) and Ors. (2007) 9 SCC 263, was considering a similar case
      where the owner himself was driving the vehicle which due to his
E     negligence dashed with a tree on the roadside as a result of which he
      died. The Court held that the claim petition filed by his LRs was not
      maintainable. It was held thus:-
              “10.     The deceased was the owner of the vehicle. For the
              reasons stated in the claim petition or otherwise, he himself was
F             to be blamed for the accident. The accident did not involve
              motor vehicle other than the one which he was driving. The
              question which arises for consideration is that the deceased
              himself being negligent, the claim petition under Section 166 of
              the Motor Vehicles Act, 1988 would be maintainable.

G             11.      Liability of the insurer Company is to the extent of
              indemnification of the insured against the respondent or an injured
              person, a third person or in respect of damages of property. Thus,
              if the insured cannot be fastened with any liability under the
              provisions of the Motor Vehicles Act, the question of the insurer
              being liable to indemnify the insured, therefore, does not arise”.
H
 NATIONAL INSURANCE CO. LTD. v. ASHALATA BHOWMIK                                 875
           AND ORS. [S. ABDUL NAZEER, J.]

        9. Therefore, the High Court was not justified in directing the          A
appellant/insurer to pay the compensation determined by the Tribunal.
Since the indemnification extended to personal accident of the deceased
is limited to Rs. 2,00,000/- under the contract of insurance, the respondents
are entitled for the said amount towards compensation. Hence, the
appellant is directed to deposit the said sum of Rs. 2,00,000/- with interest
                                                                                 B
@ 9 per cent per annum from the date of the Claim Petition till the date
of deposit with the Tribunal within a period of four weeks from today.
       10. The appeal is allowed in the aforesaid terms without any order
as to costs.
Ankit Gyan                                                     Appeal allowed.   C




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