Punjab-Haryana High Court
National Insurance Co Ltd vs Raj Dulari And Ors on 19 April, 2023
Neutral Citation No:=2023:PHHC:054789
2023:PHHC:054789
102 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-6746-2015(O&M)
Date of Decision :19.04.2023
National Insurance Company Ltd. ...Appellant
versus
Raj Dulari and others ....Respondents
Coram : Hon'ble Mr. Justice B.S. Walia
Present : Mr. Surinder Singh Sidhu, Advocate for the appellant.
Mr. Randeep Singh, Advocate for the respondents.
***
B.S. Walia, J. (Oral)
1. Challenge in the appeal is to award dated 02.07.2015, passed
by the learned Motor Accident Claims Tribunal, Karnal (hereinafter
referred to as 'the Tribunal'), awarding compensation of Rs.4,44,600/- on
account of death of Nawab Singh, i.e. husband of claimant/respondent
No.1 and father of claimant/respondent Nos.2 and 3.
2. Sole argument of learned counsel for the appellant is that the
deceased was borrower-driver of the offending vehicle, therefore, in
terms of the clauses contained in the insurance policy read with the
judgment of Hon'ble the Supreme Court in Ningamma and another vs.
United India Insurance Company Ltd. 2009 (3) RCR (Civil) 435 and
New India Assurance Company LimitedversusSadanandMukhi and
others', 2009 (1) RCR (Civil) 817, the deceased could not have been
treated as third party, therefore, the respondents/claimants were entitled
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only to the extent of liability as stipulated in the insurance policy under
the personal accident cover. Learned counsel has produced copy of
insurance policy (Ex.R/1), containing the terms and conditions with
regard to driver and limit of liability under the insurance policy. The
same are reproduced as under:-
DRIVER: Any person including insured: Provided that a
person driving holds an effective driving license at the time
of the accident and is not disqualified from holding or
obtaining such a license. Provided also that the person
holding an effective Learner's Licence may also drive the
vehicle and that such a person satisfies the requirements of
Rule 3 of the Central Motor Vehicle Rules, 1989.
LIMIT OF LIABILITY: Limit of the amount of the
Company's liability under the Section II-I (i) in respect of
any one accident as per M.V. Act, 1988. Limit of the amount
of the Company's liability under Section II-I(ii) in respect of
any one claim or series of claims arising out of one event:
Upto Rs.1,00,000/-.
3. A perusal of the aforesaid clauses reveals that the liability
under the insurance policy inter alia extends to the driver i.e. any person
including the insured provided that the person driving the vehicle holds
an effective driving license at the time of accident and is not disqualified
from holding or obtaining such license and further limits liability to
Rupees One lakh.
4. Per contra, learned counsel for the respondent/claimant
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Nos.1 to 3 refers to the decision of Hon'ble the Supreme Court in Vasuki
and another vs. Santhi and another 2021 (4) TAC 224, to contend that
the respondents/claimants are entitled to the compensation as awarded by
the learned Tribunal. Relevant extract of the aforementioned decision is
reproduced as under:-
Mr. Abhishek Gola, learned counsel for the insurance company
pointed out that in terms of Indian Motor Tariff, the liability of
the insurance company is limited in respect of personal accident
coverage, therefore, the liability of the insurance company is
limited. However, he could not point out any clause from the
policy to show that the liability of the insurance company is
limited. Mr. Gola, learned counsel also could not point out any
clause from the policy that the Indian Motor Tariff would be
applicable in respect of the liability of personal accident
coverage for the owner and driver. Mr. Gola, learned counsel
has referred to a judgment of this Court reported in (2020) 2
SCC 550, titled 'Ramkhiladi&Anr. Vs. United India Insurance
Company &Anr.' to contend that the personal accident
coverage is limited. It is argued that it was a case of motorcycle
whereas the liability of the insurance company is limited to
Rs.1,00,000/- in respect of personal accident coverage but in
respect of four-wheeler, the liability is limited to Rs.2,00,000/-.
However, we are unable to agree with the arguments raised. The
policy is categorical, indemnifying the personal accident claim
of the owner and driver. There is no cap on the amount of
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compensation payable by the insurance company in the policy.
There is no condition in the policy that tariff fixed by the Indian
Motor Tariff would be applicable in respect of personal
accident claim.
The judgment in Ramkhiladi (supra) was a case where there
was an accident between two motorcycles. One motorcycle
which was other than driven by the deceased, the owner, driver
and the insurance company were not impleaded as respondent.
Therefore, in terms of the policy, the personal accident benefit
was limited to a sum of Rs.1,00,000/- which was produced
before the Court.
5. A perusal of the aforementioned extract would reveal that as per
the policy applicable, the personal accident coverage of the owner and driver
was indemnified and on a reading of the policy, it was found that there was
no cap on the amount of compensation payable by the insurance company in
the policy nor was there any condition in the policy that tariff fixed by the
Indian Motor Tariff would be applicable in respect of personal accident
claim. The judgment relied upon also makes a mention to the decision of
Hon'ble the Supreme Court in Ramkhiladi vs. United India Insurance
Company 2020 (2) SCC 550, as per which, in terms of policy personal
accident was limited to an amount of Rs.1 Lakh.
6. I have considered the submission of learned counsel.The
judgment relied upon by learned counsel for the respondent/claimant Nos.1
to 3 is distinguishable.
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7. Admittedly, in view of the decision of Hon'ble the Supreme
Court in Sadanand Mukhi's case (supra), the borrower of the vehicle who
was driving the vehicle and died in the accident, cannot be regarded as third
party and neither Section 16-A nor Section 166 of the Motor Vehicles Act,
would be applicable.
8. Faced with the aforementioned decision, learned counsel for
respondent/claimant Nos.1 to 3 relies upon the decision of a Coordinate
Bench of this Court in the case of New India Assurance Company Limited
versus Manjit Kaur and others', FAO No.4994 of 2014, decided on
16.07.2015, to contend that in a comprehensive policy where additional
payment was made for a driver and where the personal accident of the owner
was covered under the policy, the borrower from the owner would also be
covered and would therefore be entitled to compensation to the extent the
insurance company is liable under the policy. Relevant extract of the
decision in Manjit Kaur and others'case (supra) is reproduced as under:-
"Learned counsel for the appellant has argued that in this
case, it is held that the deceased was the borrower of the
car. Therefore, as per authority of the Hon'ble Supreme
Court in the case of Ningamma and another v. United India
Insurance Co. Ltd., 2009(3) RCR (Civil) 435, the insurance
company is not liable to compensate the insured. The
perusal of the authority shows that in the said case, it was
third party policy and it was held that since owner was not
entitled to compensation, therefore, borrower from the
owner is also not entitled for compensation. However, the
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Policy (Ex.R1), shows that it was comprehensive policy and
additional payment was made for the driver. Under the
policy, the personal accident of the owner was covered. It
would follow that the borrower from the owner is also
covered. The extent of liability was not mentioned in the
policy. Therefore, the liability of insurance company cannot
be limited to certain amount. Therefore, finding of the
Tribunal in this regard are affirmed."
9. In view of the position noted above, the appeal is allowed.
Award dated 02.07.2015, is modified and respondent/claimant Nos.1 to 3 are
held entitled to Rs.1,00,000/- in terms of the clause referred to above as
contained in the insurance company which restricts liability to a sum of
Rs.1,00,000/- under personal accident coverage. Aforesaid amount be paid
to the respondent claimants by the appellant along with interest @ 9% per
annum within four weeks from today.
(B.S. Walia)
Judge
19.04.2023
rajesh
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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