2025:HHC:20718 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.257 of 2017 Reserved on: 25.06.2025 Date of Decision: 01.07.2025 ICICI Lombard General Insurance Company Limited ...Appellant Versus Anita Devi & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? No. For the appellant: Mr. Jagdish Thakur, Advocate. For the respondents: Ms. Madhurika Shekhon Verma, Advocate, for respondents No.1 to 3. Mr. Ambika Kotwal, for respondent No.4. Satyen Vaidya, Judge The instant appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (for short, “the Act”), by the insurer of the vehicle involved in the accident, against award dated 25.04.2016 passed by learned Motor Accident Claims Tribunal-III, Mandi in Claim Petition No.51/14/13. 2. Learned Tribunal has awarded compensation of Rs.16,53,000/- in favour of respondent No.1 to 3 (hereinafter 2 referred to as “claimants”) on account of death of Shri Vipin Sharma in a motor vehicle accident involving Tempo bearing temporary registration No. HP 14T-96474. 3. The vehicle involved in the accident was allegedly driven by respondent No.4 (hereinafter referred to as “driver”) and was owned by deceased Vipin Sharma. The cause of accident was attributed to rash and negligent driving of the driver. 4. The claimants had alleged that on 21.12.2012, the deceased was travelling in Tempo No. HP 14T 96474 with vegetables loaded on the vehicle. When the vehicle reached near bus Stand Banoun, the driver could not control the vehicle as it was being driven rashly and negligently and consequently the vehicle rolled down the road causing serious injuries to Shri Vipin Sharma, resulting in his death on the next day i.e. 22.12.2012 in RPGMC, Tanda. 5. The deceased was allegedly running a ‘Dhaba’ near Bus Stand Sarkaghat and the claimants, being his wife and minor children, were stated to be dependent upon the deceased for their livelihood. 3 6. The driver filed his reply to the petition and stated that he was neither rash nor negligent while driving the vehicle. As per him, the accident took place due to sand, grit and oil scattered on the road. 7. The insurer by way of separate reply raised objection as to maintainability of the petition. In addition, the deceased owner of the vehicle was alleged to have violated the terms and conditions of insurance policy. It was alleged that the deceased was driving the vehicle at the time of accident and he was not holding a valid and effective driving licence. All other contents of the petition were also denied in generality. 8. Learned tribunal framed the following issues: “1. Whether on 21.12.2012, the death of Vipin Sharma was caused due to rash and negligent driving of vehicle bearing no. HP 14T-96474 by respondent no.1 which fell down on the road towards hill side at bus stand Banoun? OPP 2. Whether the petitioners are entitled to compensation, if so what extent and from which of the respondent?OPP 3. Whether the petition is not maintainable in the present form, as alleged?OPR-1&2. 4. Whether the owner of vehicle has violated the terms and conditions of insurance policy?OPR-2 4 5. Whether the respondent no.1 was not having valid and effective driving license to drive the vehicle at the relevant time, as alleged?OPR-2 6. Whether the respondent no.1 was not driving the vehicle at the relevant time and the vehicle was driven by deceased Vipin Sharma? OPR-2 7. If issue no.6 is decided in affirmative, whether deceased Vipin Sharma was not having any valid and effective driving license to drive the vehicle, as alleged? OPR-2. 8. Relief.” 9. Issues No.1 and 2 were answered in affirmative, issue No.3 to 6 were answered in negative and issue No.7 was held having been rendered infructuous. The petition was accordingly allowed and the compensation, as noticed above, was awarded in favour of the claimants. 10. I have heard learned counsel for the parties and have perused the record carefully. 11. Learned counsel for the appellant insurer Shri Jagdish Thakur, Advocate, would contend that the findings returned by learned Tribunal on issue No.3 were against law. He would submit that the liability of insurer under the policy of insurance was to indemnify the owner in respect of liabilities arising out of third-party claims only. Since, the owner himself 5 had died and the owner not being the third party, the insurer was not liable. 12. On the other hand, Ms. Madhulika Sekhon, Advocate, representing the claimants would submit that the appellant-insurer cannot be allowed to assail the award on the ground of maintainability as neither any specific plea to that effect had been raised before learned Tribunal nor the insurer had led any evidence in that respect. 13. The record reveals that not only the insurer had taken a specific objection as to maintainability of the petition by way of preliminary objection No.1, in para-11 of reply on merits, it was specifically averred that since the claimants were legal heirs of the owner of the vehicle, they were not entitled for any compensation under Section 166 of the Act. 14. Issue No.3 had been framed specifically with respect to maintainability of the petition. 15. Learned Tribunal while deciding issue No.3 has held that the driver and insurer had not led any evidence to show that the petition was not maintainable and further that because the claimants were legal heirs/dependents of the 6 deceased, they had right to maintain the petition, accordingly the issue was decided against the owner and insurer. 16. While deciding issue No.4, learned Tribunal, though, noticed the objection that the legal heirs of the owner of vehicle were not entitled to maintain claim petition for compensation under section 166 of the Act, but rejected the same by holding that the owner was travelling in the vehicle along with vegetables and since the vehicle was a goods carrier, therefore, the owner of the goods could travel in the vehicle. 17. The insurer had placed and proved on record the Certificate-Cum-Policy Schedule of the Insurance Policy of the vehicle involved in accident as Ext. R-2. The claimants have not produced any other policy. They also have not raised any objection to the production of the policy by the insurer. The contents of policy Ext. R-2 reveal the name of owner of vehicle as Vipin Sharma. The validity of the policy was w.e.f. 31.10.2012 to 30.10.2013. As per schedule of premium, the deceased Vipin Sharma had paid premium for Basic Own Damage, Basic Third-Party Liability, Paid Driver and Personal Accident Cover for owner-driver. Noticeably, as per Ext. R-2 7 coverage of Rs.2,00,000/- only was provided for personal accident cover for owner-driver and for such liability a premium of Rs.100/- was paid. 18. The issue involved in the instant appeal has already been decided by this Court in FAO No.42 of 2013, titled Neelam Kumari and others vs The National Insurance Company, decided on 06.08.2021 reported in 2021(3) Shim. LC 1732 in the following terms: “21. Insofar as the claim under Section 166 of the Act raised by the appellants/claimants is concerned, the same has been rightly denied by the learned Tribunal. The conjoint reading of Sections 147, 149 and 165 of the Act, leads to inescapable conclusion that the claim under Section 166 of the Act on behalf of the legal representatives of the deceased, who himself was owner of the vehicle was not maintainable. The Act provides for the right of insured to be indemnified by the insurer against the third-party risk. The only exception being in respect of the claims which arise out of the special contract between the insured and insurer beyond the coverage of third-party risk. 22. There is no hesitation in holding that the claim of the appellants/claimants on account of death of Sunil Kumar was not maintainable as the deceased Sunil Kumar was himself the 8 owner-cum-driver of the vehicle involved in the accident and hence his legal representatives had stepped into his shoes, therefore, were not entitled to seek indemnification from the insurer. 23. Now the question that remains to be decided is whether the Tribunal could have awarded a sum of Rs 2,00,000/- to the appellants/claimants on account of special contract existing between the parties? It is not in dispute that respondent had received premium for insuring the owner’s personal risk to the maximum limit of Rs. 2,00,000/-. 24. The Act mandates the policy coverage of third-party risks but at the same time does not prohibit the insurer to enter into a special contract of insurance with insured to cover risks of the persons and property over and above the statutory coverage as provided under Sections 146 and 147 of the Act. The expression used in proviso (ii) to Section 147 (1) “Provided that the policy shall not be required to cover any contractual liability”, does not mean that the insurer is prohibited by the Act to enter into a special contract of insurance with the insured beyond the statutory limit prescribed under the Act. In other words, Sections 146 and 147 of the Act, prescribe the minimum statutory requirement of the insurance policy covering third party risks subject to the limits provided under sub section (2) of Section 147. In 9 addition, sub section (5) of Section 147 of the Act, reads as under: “(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons”. 25. Section 165 of the Act enables the constitution of Tribunals. Sub section (1) of Section 165 of the Act cannot be said to be exhaustive for the reasons that in explanation appended thereto, the claims under Sections 140 and 163A of the Act have also been included. 26. Sections 140 and 163A of the Act have their applicability even without proof of negligence, which otherwise is opposed to the very principle of strict liability and vicarious liability under law of torts, on which rests the entire edifice of jurisdiction of Tribunals to award damages/compensation. 27. This Court is thus unable to concur with the contention raised on behalf of the respondent that even the claim of Rs.2,00,000/- on account of personal accidental risk of the deceased covered under the policy Ext. R-1 was not maintainable before the Tribunal. Reference can be made to the judgment 10 rendered in Dhanraj vs. New India Assurance Company Ltd. and another AIR 2004 SC 4767 wherein Hon’ble Apex Court has held as under: “8…In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi and Ors. [1998 ACJ 121] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also. [9] 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.” 28. Similarly, the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Ashalata Bhowmik and others (2018) 9 SCC 801 in para-9, has held as under: “9…Therefore, 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 of the deceased is limited to Rs.2,00,000/-under the contract of insurance, the respondents are entitled for the said amount towards 11 compensation. Hence, the appellant is directed to deposit the said sum of Rs. 2,00,000/- with interest @ 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.” 29. Even the judgment relied upon on behalf of the respondent in Ramkhiladi and another vs. United India Insurance Co. Ltd. and another 2020 ACJ, 627, the Hon’ble Supreme Court has held in paras 5.9 and 6 as under: “5.9. Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha, 2007 9 SCC 263; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut, 2007 3 SCC 700 and Premkumari v. Prahlad Dev, 2008 3 SCC 193, it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract 12 of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove. [6] In view of the above and for the reasons stated above, the present appeal is partly allowed to the aforesaid extent and it is observed and held that the original claimants shall be entitled to a sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from the date of the claim petition till realization. In the facts and circumstance of the present case, there shall be no order as to costs.” 30. Even this Court in ICICI Lombard General Insurance Company Ltd. Vs. Parul Sharma and others 2018 ACJ 635 has held as under: “21. The Apex Court in the case titled as Oriental Insurance Co. Ltd. versus Rajni Devi and others, 2008 ACJ 1441, held that where compensation is claimed for the death of the owner or another passenger of the vehicle, the claim of the insurance company would depend upon the terms of the insurance policy. It is worthwhile to reproduce paras 6 and 11 of the judgment herein: "6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the 13 vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. 7 to 10. Xx xxx xxx 11. According to the terms of contract of insurance, the liability of the insurance company was confined to Rs. 1,00,000 (rupees one lakh). It was liable to the said extent and not any sum exceeding the said amount." [22] Applying the test to the instant case, the insurance policy of the offending vehicle is on the record as Ext. R1E, the perusal of which does disclose that the owner insured has paid extra premium covering the insurance of the owner to the extent of Rs. 2,00,000/. As discussed hereinabove, deceased Vijay Sharma had stepped into the shoes of the owner, thus, his risk was covered to the extent of Rs. 2,00,000/ and the claimants, being the legal representatives of the owner, are entitled to compensation only in terms of the conditions contained in the insurance policy. [23] Viewed thus, it is held that the claimants are entitled to compensation to the tune of Rs. 2,00,000/ with interest @ 7.5% per annum from the date of the claim petition till its finalization.” 19. Thus, the appellant-insurer having failed to prove any other breach of conditions of the policy, it cannot avoid the liability to pay compensation to the tune of Rs.2,00,000/- to the 14 claimants on account of coverage of personal risk under the policy Ext. R-2. 20. In result, the appeal is partly allowed. Award dated 25.04.2016 passed by learned Motor Accident Claims Tribunal- III, Mandi in Claim Petition No.51/14/13 is modified to the extent that the claimants are held entitled to compensation of Rs.2,00,000/- only along with interest at the rate of 9% per annum from the date of filing of the petition till the deposit of the amount. The appeal is accordingly disposed of along with pending application(s), if any. (Satyen Vaidya) Judge July 01, 2025 (vt)