NATIONAL INSURANCE CO. LTD., KOLLAPURA DIVISION, BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO. 144, SUBHARAM COMPLEX, M.G. ROAD, BANGALORE 560001, BY ITS MANAGER Vs. T.A. RADHA AND OTHERS

JUDGEMENT

(1.) THE Insurer has preferred this appeal challenging The liability imposed on it to pay the compensation to Respondents 3 to 6 herein.

(2.) IN an accident that occurred on 24.11.2007. Sheshachala the rider of the Motor Cycle bearing No. KA -18 -K -492 died due to the rash and negligent driving of Tata Sumo vehicle bearing No. MH -09 Z -5777 which came from the opposite direction and said to have hit the deceased, the rider of the motor cycle. Respondents 1 to 5 herein are the legal representatives of the deceased who made a claim for compensation under Section );">166 of the Motor Vehicles Act (hereinafter called as 'the Act' for short) impleading the driver (Respondent No. 6 herein), the owner (Respondent No. 7 herein) and the appellant insurer as Respondent No. 3 before the Tribunal as party. During the pendency of the proceedings and even before the appearance of the owner, a Memo was filed to delete Respondent No. 2 owner. Ultimately, the evidence was led by examining PWs. 1 to 3 and in their evidence the documents Exs.P.1 to 31 were marked. The insurer produced Ex.R.1 the copy of the Insurance Policy which was admitted in evidence with consent. The Tribunal after hearing the counsel and on appreciation of the material on record allowed the claim petition by granting compensation of Rs. 7,61,516/ - with interest at 6% p.a. directing the appellant insurer to pay the same to the legal representatives of the deceased. Aggrieved by the award, the present appeal has been filed.

(3.) THE liability to pay the compensation is through a contract between the owner of the vehicle and the insurer subject to the terms and conditions incorporated in the Insurance Policy. It is only when the owner is held responsible to pay the compensation, it is the duty of the Insurance company to indemnify the owner to pay the compensation awarded. Unfortunately, the claimants though at the initial stage impleaded the owner as Respondent No. 2 before the Tribunal, filed a Memo and got deleted him even before he appeared before the Tribunal. So, when the contract was in between the owner and the insurer and the owner was not a party to the proceedings and when the owner was not made liable to pay the compensation, the question of indemnifying the owner does not arise for consideration. In these circumstances, the award of the Tribunal imposing the liability upon the Insurance Company (the appellant herein) is both erroneous and illegal