IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3151 of 2006 (O&M) Date of decision:28.09.2010 National Insurance Company Limited ....Appellant versus Smt. Rajbala and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. L.M.Suri, Senior Advocate, with Mr. Neeraj Khanna, Advocate, for the appellant. Mr.Ashok Bhardwaj, Advocate, for respondents 1 to 5. Mr. Pankaj Midha, Advocate, for respondent No.6. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The Insurance Company is in appeal denying liability on the ground that the deceased was a borrower of the vehicle from the insured and had dashed into a tree that resulted in his death. The counsel would place reliance on the judgment of the Hon'ble Supreme Court in Ningamma and another Versus United India Insurance Company Limited-2009 ACJ 2020 that held that a borrower of a vehicle steps into the shoes of the insured and if the policy does not cover the risk to a driver or a personal accident cover to the owner or the borrower then FAO No.3151 of 2006 (O&M) - 2 - there cannot be a right of action against the insurer of the very vehicle in which he was travelling. 2. The learned counsel for the claimants contends that the application was filed not merely under Section 163-A but it was also filed under Section 166. They are mutually exclusive and the parties are bound to apply for relief only under anyone of them and not under both. Assuming for the arguments sake that a case would be treated as a claim under Section 166, then Section 166 merely enacts a tort principle that makes a person answer the claim arising out of negligence of the other person. In other words, the cause of action under Section 166 could be only for negligence of yet another person and cannot root his own action as generating a valid cause of action against the insurer. In this case, the accident is said to have taken place when a truck, whose identity with reference to the registration number or the owner is not disclosed, is said to have overtaken the car which the deceased was driving and when it was proceeding in front too closely and dangerously, the driver in order to avoid hitting the truck going in front, exercised caution enough not to hit the truck but swerved to the left without noticing a tree and dashed against a tree. In this case, if an action under Section 166 were to survive, it could have been only in a situation where the truck owner and the driver had been made parties and the accident is attributed as resultant to the negligence driving of the truck driver. If they were not parties, the examination of the evidence even under Section 166 shall not be possible. FAO No.3151 of 2006 (O&M) - 3 - 3. The learned counsel refers to me a decision of the High Court of Bombay where a claim had been made under Section 163-A where the contention was that the claimant was having an annual income of more than Rs.40,000/- and, therefore, it was contended with reference to the decision of the Hon'ble Supreme Court in Deepal Girish Bhai Soni & others Versus United India Insurance Company Limited-2004 ACJ 934 that such a claim petition was not maintainable. The Court accepted that contention but scaled down the amount to less than Rs.40,000/- to award appropriate compensation. I do not see how this has any bearing to our case, for, it does not answer the situation adverted to in Ningamma referred to above. The learned counsel also refers to me a decision of the High Court of Delhi in Rukmani Devi Versus New India Assurance Company Limited and another-2009 ACJ 2202, and another case dealt with in United India Insurance Company Limited Versus Rehana Begum and others-2009 ACJ 2580 both of which advert to a wholly different situation that has no bearing to what we are dealing with now. 4. The claimants cannot go without a relief at least in the manner in which Section 140 has been interpreted by the Hon'ble Supreme Court recently in a judgment in Eshwarappa @ Maheshwarappa and another Versus C. S. Gurushanthappa and another-2010(8) Scale 263. The Court has held that if there was no liability under the terms of the policy, the insurer shall still be liable under no fault liability regime recognized under Section 140 of the Motor Vehicles Act. The Insurance Company will be liable for FAO No.3151 of 2006 (O&M) - 4 - Rs.50,000/- in the manner contemplated under Section 140 with interest as provided by the Tribunal. 5. The award of the Tribunal shall stand scaled down to the above extent and the appeal filed by the Insurance Company is allowed but subject to restriction referred to above. (K.KANNAN) JUDGE 28.09.2010 sanjeev