Cholamandlam MS General Insurance Company Limited vs Rajesh and Others

Ajay Tewari, J.—This appeal has been filed by the insurance company against the award dated 07.04.2010 passed by Motor Accident Claims Tribunal, Fast Track Court, Gurgaon. The Tribunal has awarded total compensation Rs. 2,00,000/- along with interest @ 7.5% P.A. from the date of filing of the present claim petition till the realization for the death of Sonu @ Surender. The brief facts of this case are that on 11.03.2008 Sonu @ Surender was going to Berli Kalan from village Haluhera while driving the car bearing registration No. HR-26AK-5014 at a very moderate speed and on the correct left hand side of the road along with his relatives namely Dinesh and Surender. At about 2.40 P.M. when they reached the area of village Berli a wandering cow suddenly appeared on the road. The deceased tried to save the cow and as such he lost control over the car and struck against the tree and consequently the occupants received multiple and grievous injuries and Sonu @ Surender died in this accident.

Learned counsel for the insurance company has argued that in this claim petition under Section 163-A the deceased-borrower of the car would not be entitled to compensation under the compulsory personal accident claim.

Learned counsel for the respondents-claimants has relied upon New India Assurance company Limited v. Umesh Kumari and others 2001 (2) ACJ 890, wherein a Co-ordinate Bench of this Court held that in such a case the borrower steps into the shoes of the owner and, therefore, be entitled to compensation. However, the learned counsel for the insurance company has further argued that in this judgment GR-36 of the Indian Motor Tariff has not been noticed; the same is quoted herein below:--

"G.R. 36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles).

A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an effective'' driving license is termed as Owner-Driver for the purposes of this section."

Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured vehicle as a co-driver.

NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be, granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.

"The scope of the cover, Capital Sum Insured (CSI) and the annual premium payable under this section are as under:--

xxxxx

Optional Personal Accident Cover for persons other than Owner-Driver

The cover under this section is limited to maximum Capital Sum Insured (CSI) of Rs. 2 lacs per person.

Cover is available only in respect of the following persons:

Private Cars including three wheelers rated as Private cars and motorized two wheelers with or without side car (not for hire or reward): For insured or any named person other than the paid driver and cleaner.

Endorsement IMT - 15 is to be used.

Private Cars, three wheelers rated as Private cars and Motorized Two Wheelers (not used for hire or reward) with or without side car: For unnamed passengers limited to the registered carrying capacity of the vehicle other man the insured, his paid driver and cleaner.

Endorsement IMT - 16 is to be used.

In respect of all classes of vehicles: For paid drivers, cleaners and conductors. Endorsement IMT - 17 is to be used.

Motorized Two Wheelers with or without side car (used/or hire or reward): For unnamed hirer/driver.

Endorsement IMT -18 is to be used.

The scope of the cover, Capital Sum Insured and the annual premium payable under this section would be as under:--

xxxxxxxxxxx"

As per learned counsel for the appellant perusal of the above mentioned regulation clearly reveals that compulsory personal accident is for the benefit only the registered owner-driver ''- cannot be interpreted to mean owner or driver but can only to interpret that person who is the owner and driver himself. On perusal of the above mentioned judgment that I find that this point was not raised before learned Judge.

Learned counsel for the insurance company has further relied upon Bajaj Allianz General Insurance Company Limited v. Jagdish Singh and others in FAO No. 1773 of 2010 decided on 9.12.2010 wherein another Single Judge after relying on Ningamma and Another Vs. United India Insurance Co. Ltd., has taken contrary view than that taken in New India Assurance company Limited v. Umesh Kumari and others (supra). In my opinion the judgment in Bajaj Allianz General Insurance Company Limited v. Jagdish Singh and others (supra) lays down the correct law. In the circumstances, it has to be held that- the borrower cannot get the benefit of personal accident claim which is restricted to the registered owner-driver.

The appeal is allowed and the award is set aside. Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.