Kusum Lata and Others vs Oriental Insurance Co. Ltd. and Others

Anita Chaudhry, J.—This appeal has been preferred by the claimant, whose claim for compensation had been declined by the Motor Accident Claims Tribunal, Chandigarh vide award dated 13.01.2011. The grievance is that the Tribunal had wrongly rejected the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 by relying upon Ningamma and Another Vs. United India Insurance Co. Ltd., and the authority did not apply to the facts of the case.

To resolve the issue, it is necessary to refer to the facts first. Sandeep Jain was driving a maruti car when a cow suddenly came on the road. In order to avoid the accident, Sandeep swerved his car, which skidded and hit a pole resulting in an accident and fatal injuries to Sandeep.

As usual, the Insurance Company contested the petition and raised the plea that Sandeep Jain had borrowed the vehicle and the claim was not maintainable. Even the accident was denied in the manner stated. The Tribunal recorded a finding that the death had occurred in the road accident, which had taken place on 23.02.2008 but on issue No. 2 relying upon Ningamma and another''s case (supra) a finding was given that the legal representatives of a person driving a vehicle, who had borrowed it, would not be entitled to claim compensation under Section 163-A.

Learned counsel for the appellants had urged that Ningamma & another''s case (supra) was not applicable as there was a package policy and the insured had paid premium towards compulsory P.A. and separate amount for the driver and has relied upon New India Assurance Co. Ltd. v. Umesh Kumari and others, 2011 ACJ 890.

Learned counsel for the Insurance Company placed reliance upon the case reported as Sushila and Others Vs. Sh. Pankaj Mahajan and Another, and referred to the Motor Tariff Regulations and had urged that it was identical case and the driver in this case was not third party and we have to only look to the policy and find out the extent of the liability if any and at the most the Tribunal could have provided compensation under the no fault liability under Section 140 of Motor Vehicles Act, 1988 in the manner contemplated by Apex Court in Eshwarappa @ Maheshwarappa and Another Vs. C.S. Gurushanthappa and Another, .

It is useful to refer to para 21 of Ningamma''s case, which reads as under:

"(21) Section 147 of the MVA provides that the policy of insurance could also cover cases against any liability which may be incurred by the insured in respect of death of or bodily injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in the public place."

The Indian Motor Tariff Regulations prescribed two types of policies. The type of policies include what Section 147 of the Motor Vehicles Act mandates and what parties could do beyond what is mandated. A package policy, which provides insurance cover to own damage to vehicle or damage beyond the statutory minimum would also come through special package, which is termed a package policy''. The personal accident cover is compulsory for owner--driver and optional through the package policy and what has to be seen is the extent of insurance that has been covered. In the present case, the insured had paid premium for personal accident as well as for the driver and that would cover the risk of the driver to the extent mentioned in the policy as it was a case of limited liability. The Tribunal could have provided only Rs. 2 lacs as compensation to the claimants under no fault liability under Section 140 of the Motor Vehicles Act, 1988 in the manner contemplated by the Apex Court in Eshwarappa @ Mahesh-warappa and another''s case (supra). The award passed by the Tribunal is set aside and the appeal is partly allowed and the appellants are allowed a sum of Rs. 2 lacs, which shall be payable with interest @ 6% per annum from the date of filing of petition till its realisation.