FAO No.4583 of 2006 1 IN THE PUNJAB & HARYANA HIGH COURT, CHANDIGARH FAO No.4583 of 2006 Date of Decision: 15.09.2010 National Insurance Company Ltd. ....Appellant Versus Paramjit Kaur ....Respondent CORAM: HON'BLE MR.JUSTICE K.KANNAN Present: Mr.Suman Jain, Advocate, for the appellant, Mr.J.S.Cooner, Advocate, for respondent Nos.1-4. **** K.Kannan J. (Oral) 1. The Insurance Company is in appeal denying liability on the ground that the driver of the motorcycle met with an accident by driving against a tree and sustained fatal injuries. The defence was on two grounds; One, the proved income of the claimant was Rs.7720/- per month which was in excess of the statutory limit of Rs.40,000/- per annum in order that the appeal under Section 163 is maintained. Since the claim arose out of death of a person whose income was in excess of Rs.40,000/-, the petition was not maintainable in view of the judgment in Deepal Girish Bai Soni Vs. United India Insurance Company Limited 2004 ACJ 934. The other contention was that he was himself borrower of a vehicle from the owner and a death to such a person cannot survive in terms of the judgment of the FAO No.4583 of 2006 2 Hon'ble Supreme Court in Ningamma and another Vs. United India Insurance Co Ltd 2009 ACJ 2010. 2. As regards the first contention that the person was said to be earning more than Rs.40,000/- per annum, the right of the representatives to invoke the provisions cannot avail and I shall, therefore, examine the case only with reference to the liability that could arise if the income were ever to be scaled down and a compensation worked out on the basis that his income was less than Rs.40,000/-. Even such an exercise can not help in this case on account of the fact that the deceased merely stepped into the shoes of the owner and the policy of insurance merely provides right of indemnity to the owner insured. There cannot be a successful claim for indemnifying oneself for a death accruing to such a borrower. This has been so laid down by Hon'ble Supreme Court in Ningamma's case (supra). 3. In the judgment of Hon'ble Supreme Court in Bimlesh v. New India Insurance Company Ltd. reported in 2010-7- SCALE 732, the Hon'ble Supreme Court directed that even then, it shall become necessary for a Court to examine the terms of the policy to find out whether by any term of the policy, the claimant could have successful right to prosecute. I have seen through the terms of the policy where a person or class of persons having valid driving licence were entitled to drive but the limit of liability is as provided under the Motor Vehicles Act, 1988. The vehicle was covered under an Act FAO No.4583 of 2006 3 policy and therefore, there was no liability of the insurer to cover the risk of a borrower of the vehicle. Even looking at the terms of the policy, it cannot become possible for the claimant to sustain that claim. 4. There has still been a judgment of the Hon'ble Supreme Court in Eshwarappa @ Maheshwarappa and Anr. Vs. C.S. Gurushanthappa and Anr. 2010 ( 8 ) SCALE 267 that has held that even if the Insurance Company is not liable under the terms of the policy but there had been a policy of insurance for a vehicle, the liability would exist not under the terms of the policy but through the statutory mandate contained under Section 140 of the Motor Vehicles Act, 1988. The liability of the Insurance Company shall, therefore, stand restricted to Rs.50,000/- under Section 140 of the Motor Vehicles Act, 1988 and in the manner interpreted by the Hon'ble Supreme Court in Eshwarappa's case (supra). 5. The award of the Tribunal, shall therefore, stand set aside and there will be a restriction of liability of the insurer to the extent of Rs.50,000/-. 6. The appeal is allowed to the above extent. 15.09.2010 (K.Kannan) sailesh Judge