SAMANTA, J.

(1.) This miscellaneous appeal is by the insurer appellant against the judgment and award passed in an application under Section 163A of the Motor Vehicle Act, 1988 (hereinafter called as the) in favour of the sole claimant respondent, who is the sole heir and legal representative of the deceased, being his son. The father of the sole respondent died in a motor accident while traveling in the vehicle which belonged to his son, the claimant respondent herein. By the aforesaid judgment and award the amount of compensation payable to the claimant respondent for the death of his father has been determined at Rs. 3,29,500/-.

(2.) In this appeal the short but important question that arises for determination, is whether the claimant respondent being the insured himself is entitled to maintain the claim petition as being the sole heir and legal representative of the deceased who died in a motor accident arising out of the use of vehicle of the insured.

(3.) In view of the question as posed in this appeal, the entire facts of the case in relation to the accident in which the father of the claimant respondent died need not be stated in detail. The relevant facts are that the deceased father of the claimant respondent was travelling in the vehicle owned by his son, the claimant respondent while the same being driven by the driver met with the accident.

(4.) The above claim petition was filed by the claimant respondent under Section 163A of the said Act. In view of the provisions thereof the rash and negligent driving of the vehicle by its driver were not issues for determination in the claim case. Involvement of the said vehicle in the said accident, in which the father of the claimant respondent was travelling and ultimately succumbed to the injuries suffered by him in the said accident were proved before the Claims Tribunal. Such findings have not been questioned by the insurer appellant in this appeal. It was also not in dispute that the said vehicle was under insurance cover at the time when the said accident occurred. In this case the said vehicle was a taxi and registered as WMT 5325 with the Registering Authority. The certificate of insurance policy shows that the said vehicle was insured as commercial vehicle particularly as passenger carrying vehicle for hire or reward and was covered under "B" type policy.

(5.) It is to be further noted that there is no evidence and / or material on record to establish that the deceased father of the claimant was travelling in the said vehicle for hire or reward.

(6.) In relation to the question as posed in this appeal, interpretation of Section 147 and Section 148 of the said Act becomes relevant. Section 147 (1)(b)(ii) provides that a policy of insurance must be a policy of insurance which Insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Again Clause (a) of sub-section (2) of Section 147 provides that a policy of insurance shall cover any amount of liability incurred in respect of any accident.

(7.) Section 149 sub-section (1) at the same time provides that the judgment or award in respect of any such liability as is required to be covered by a policy under Clause (b) of sub-section (1) of Section 147 including the liability arising out of the provisions of Section 163A would be satisfied by the insurer as if he was the judgment debtor in respect of such liability.

(8.) Upon reading of the aforesaid provisions of the said Act it becomes clear that the liability of the insurer arises for the purpose of indemnifying the insured under the contract of insurance only when the liability of the insured has been upheld. The Supreme Court in the case of Oriental Insurance Co. v. Sunita Rathi, reported in AIR 1998 SC 257 [LQ/SC/1997/1611] , has held that the liability has to be of the owner of the vehicle and the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.

(9.) The proposition that the insurer insures the liability of the insured and does not insure the insured himself has been laid down by different High Courts in various judgments. Reference may be made to the decisions reported in 2000 ACJ 134 (Hemlata Sahu and Ors. v. Ramadhar and Anr.). 1995 ACJ 851 (UnitedIndia Insurance Co. Ltd. v. Odeti Mallu Bai and Ors.) 1991 ACJ 177 (Oriental Fire and General Insurance Co. Ltd. v. Shakuntala Devi), 2004 (1)TAG 128 (Cat) (Smt. Dipali Chattopadhyay and Anr. v. New India Assurance Co. Ltd. and Ors.), 2004 ACJ 826 (New India Assurance Co. Ltd. v: Ananda Moyee Dikpati and Ors.,) 2004 ACJ 795 (United India Insurance Co. Ltd.v.Tanushri Mukherjee and Ors.), 2004 (2) TAG 409 (Ca)(New India Assurance Co. Ltd. v. Krishan Khatua and Ors.). However, it is true that all the aforesaid decisions have been rendered in claim cases which were filed on the death of the insured himself in motor accident involving the vehicle which was under insurance cover.

(10.) The learned Advocate appearing on behalf of the claimant respondent being faced with the above decisions has tried his best by making distinction of the case in hand from the decided cases by contending that the claim petition was not filed on the death of the owner insured but on the death of his father who was being carried as a passenger in his vehicle. Although in real life the relationship between the insured and the passenger of the offending vehicle is the son and his father but in law the liability has been fastened upon the insured on the death of a passenger of a public service vehicle caused by or arising out of the use of the vehicle.

(11.) To refute such contention reference has been made to the decision reported in 1988 ACJ 445 (M. Akkavva v. New India Assurance Co. Ltd. and Ors.) on behalf of the insurer/ appellant. In that case the claimant was one Akkavva wife of Mandanna. Said Mandanna was running a goods carriage service. Mandanna and Akkavva had only one son named Bopanna. Said Bopanna was travelling in his father's lorry which was insured with M/s. New India Insurance Co. Ltd. The said lorry was carrying a load of cement that admittedly belonged to Mandanna, the owner of the goods vehicle. Before the Claims Tribunal a case was made out that Bopanna was carrying his father's goods in his father's own lorry under instructions from his father and was fatally injured en-route, because of the driver's folly. It was urged therein that the claimant was entitled to be compensated by the insurer with whom the vehicle was duly insured on the date of the accident. In effect the claim by the mother of the deceased person was against her own husband and his insurer.

(12.) The only question that arose for consideration in that case whether it was possible to hold that victim of the accident to be a third party vis-a-vis the contract of insurance between the owner and the insurer.

(13.) In the said case it was observed that if at the bidding of his father the deceased was travelling in the lorry to ensure the safe conduct of his goods as set up by the claimant in her cross-examination, then it would not advance the case of the claimant any further. At the same time it was held that the son would be in no better position than the owner-father himself as it was not the claimant's case that Bopanna was a workman under the owner and was traveling in the vehicle in the course of employment.

(14.) It was clearly observed therein that basically a ccintract of motor insurance seeks to indemnify the owner of the vehicle against the liability arising out of claims of third parties arising against the insured owner out of the use of the motor vehicle. A contract of insurance which stipulate to pay compensation for the death of the insured person himself cannot be said to be a contract of indemnity. If the owner of the vehicle himself, who has the benefit of indemnity, is not covered by the policy, his representatives, unless he be an employee covered by the first proviso to Section 95(1)(b), is in no better position to the insurer's obligation or the absence of it.

(15.) Section 95 of the 1939 Act corresponds to Section 147 of the said 1988 Act.

(16.) The above decision of Karnataka High Court, therefore, in substance has laid down that since Bopanna was travelling in the vehicle as agent or representative of the owner of the vehicle, so on his death the owner-father was not liable to pay compensation even where the claimant was the mother of the deceased. Such being the decision rendered by the Karnataka High Court in the above case it is no longer possible for the claimant-respondent to wriggle out of the position settled in law by the aforesaid decision by drawing such distinction in this case.

(17.) Here in this case the liability is the main factor. In the facts of the case the liability is not a real liability but a liability by fiction of law as practically there is no liability incurred by the insured against any one except for himself.

(18.) In other words it is a demand for indemnifying the liability which has been incurred by him against himself. In reality this is a claim for making gain in the garb of liability.

(19.) In this connection it may be stated that under common law a personal action dies with the parties to the cause of action but the advent of the Motor Vehicles Act introduced the entitlement of the legal heirs of a deceased to claim damages for loss of dependency on the death of a person in a motor accident. The provisions of the said Act provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle or the owners of the vehicle as the case may be shall jointly or severally be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said Act. Because of specific provision of Section 149 of the said Act such liability of the owner or owners of the vehicle, as th'e case may be, is to be indemnified by the insurer. Upon reading of all these provisions it is clear that it does not give third party any right to sue the insurer before any liability has been established. Here in this case the insured having not incurred any liability to pay compensation to any one, the question of indemnification by the insurer does not arise at all.

(20.) The claimant/respondent next contends that because of the non- obstante clause in Section 163A the insurer is liable to pay compensation, in case of death or permanent disablement due to accident arising out of the use of motor vehicle, to the legal heirs of the deceased or the victim, as the case may be, irrespective of incurring of liability by the insured. It is his contention, in this regard, that Section 149 creates obligation upon the insurer to pay to the person entitled to the benefit of judgment and award in respect of any such liab///ty as is statutorily required to be covered by a policy or under the provisions of Section 163A of the said Act. Non-obstante clause appended to Section 163A at its beginning would have the effect of not impeading the obligation of the insurer to satisfy the judgment and award in any manner once such award is obtained.

(21.) This contention, in my judgment is based upon mis-conception. Section 147 broadly requires a policy of insurance to be issued by an authorised insurer against any liability which may be incurred by the insured in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle. Section 149 accordingly casts duty upon the insurer to discharge such liability of the insured covered by the terms of the policy or under the provisions of Section 163A by making payment of money value of such liability to the person who is entitled to the benefit of the same. These two sections if read together, clearly imply that once a certificate of insurance has been issued, the insurer shall pay to the person entitled to the benefit of judgment and decree arising out of the liability of the insured. In other words the liability covered by the terms of the policy including the liability under the provisions of Section 163A shall be discharged by the insurer on behalf of the insured because of such insurance certificate. Non- obstante clause beginning with "notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law" appended to Section 163A does not make either the provisions of Section 147 or Section 149 inoperative for the purpose of application of the said Section 163A. This is also clear from the language used in Section 163A itself such as "owner of the motor vehicle or the authorised insurer shall be liable to pay" read with the provisions of Section 149 which specifically provides that the liability under the provisions of Section 163A of the insurer, shall be discharged by the insurer.

(22.) The above non-obstante clause does not refer to the particular provision of Section 149 or reduce the portion of that section embracing the liability of the insured as embodied therein in making of a judgment and award against an insured in such circumstances. Rather Section 149 abundantly clarifies that judgment and award in respect of liability under the provisions of Section 163A, made against insured shall be satisfied by the insurer by making payment to the person entitled to the benefit of such judgment and award as if the insurer was the judgment debtor. Therefore, there is no apparent ambiguity between the provisions of Sections 149 and 163A of the said Act so far as the liability of insured is concerned so as to enlarge the ambit of Section 163A by casting duty upon the insurer even when there is no liability of the insured by such use of non-obstante clause as a legislative device. Catch word in both the cases is the liability. This is also apparent from the language of Section 163A such as "the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle". This enacting part of Section 163A, which is clear, must be taken to control the section itself, otherwise both cannot be read harmoniously together. Upon reading of all the provisions of the Motor Vehicles Act, 1988 it appears that the non-obstante clause appended to the beginning of Section 163A only empowers the determination of compensation on no fault liability, distinct from determination of compensation under fault liability as per Section 166 of the said Act.

(23.) The claimant respondent trying to hold straw in the flood water lastly contends that as an insurer is only entitled to take defence in a claim case within the scope of Section 149(2) of the said Act and not otherwise, so this appeal on grounds other than those specified in said section is not maintainable. Answer to this contention is simple. Question of valid defence under the law arises once the claim petition is maintainable in law. Here, in this appeal question has been agitated as to the maintainability of the claim petition by the claimant respondent. In view of the decisions as above taken in this regard, this plea of the claimant respondent is of no substance.

(24.) Upon all such considerations the judgment and award of the claims tribunal as impugned in this appeal is set aside. The appeal is accordingly allowed. There will be no order as to costs.

Maharaj Sinha, J.

I Agree