F.A.O.NO. 3357 OF 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3357 OF 2006 Date of decision:5th October, 2010 United India Insurance Company Limited, SCO No. 123-124, Sector 17- B, Chandigarh, through its Assistant Manager. .......Appellant Versus Priti and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. V.Ramswaroop, Advocate, for the appellant. Mr. Surinder Gandhi, Advocate, for the claimants. None for National Highway Authority of India. Mr. Kunal Garg, AAG, Haryana. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The appeal is by the Insurance Company, challenging the liability on the ground that the accident had taken place while the insured's son was driving the scooter and drove on cow dung, slipped and suffered injuries that were fatal. The claim was made on the assumption that the death had resulted by use of a motor vehicle and therefore, the insurance company was liable. The claimants were F.A.O.NO. 3357 OF 2006 2 widow, three minor children, mother and the father. 2. The contention of the learned counsel appearing for the insurance company was with reference to the decision of the Hon'ble Supreme Court in Ningamma and another Versus United India Insurance Company Ltd. (2009) ACJ 2020 , that a son who borrows a vehicle from his father who was the owner, does not leave a trail of cause of action to pursue against the insurer. Learned counsel would also refer to the fact that the policy had been merely to cover the risk to the third party for an extent provided compulsorily under the Motor Vehicles Act and it had no insurance cover to protect the driver of the vehicle who was nor a workman and owner not required to be covered under the Workmen's Compensation Act. Learned counsel would therefore, rely on the decision in New India Assurance Company Limited verus Sadanand Mukhi and others(2009) 2 SCC 417 to state off the claim against it. These two decisions bring home the point that there could be no valid cause for recovery of amount for compensation and under Section 163-A of the Motor Vehicles Act (hereinafter referred to as the 'Act'). I have also gone through the terms of the policy in the manner which the Hon'ble Supreme Court lays down in Bimlesh and others versus New India Assurance Company Limited (2010) 7 SCALE 732, that holds that even apart from the situation of proof of negligence, it shall become necessary whether there is any terms of insurance policy that governs the risk for death or bodily injury in a motor accident. There exists no insurance cover F.A.O.NO. 3357 OF 2006 3 for protecting the claim of the representative for a person who used the motor vehicle and came by an accident by falling from his vehicle. 3. Learned counsel appearing for the respondent would contend that the case was instituted under Section 166 of the Act and the claim must be taken as falling within Section 166(i)(c) of the Act where the death has resulted from the accident by or any of the legal representatives of the vehicle. This section merely refers to the persons who are competent to file the petition and it does not lay down any where about that is required to be proved. That is set out under Section 165 and 168 of the Act. 4. The benefit under Motor Vehicles Act is an extension of the Law of Tort and it is on the basis of liability norm or proof of negligence of a person who is not the claimant himself. The exceptions are carved out in the set itself such as when under Section 140 of the Act, claim is possible on no fault basis. Section 163-A of the Act is another exception where without proving the negligence of the other person involved in the accident, an injured or representative of the deceased could make a claim. There is a hybrid variety as well under the policy of motor insurance. The insurer may cover the risk arising not merely by the negligent act of the insured or a person employed by him but may provide for a personal accident cover in the manner that the life insurance policy itself provides. Here the liability of the insurer arises under a contract of insurance and not through the dictates any of the provision mentioned under Sections 147, 165 F.A.O.NO. 3357 OF 2006 4 or 168 of the Act. If they are relevant they shall be only to see whether the accident took place through the use of the vehicle in a public place. 5. The Tribunal shall stay in focus to see:- (i) whether the accident arises by the use of motor vehicle. (ii) whether the claim in case of death is at the instance of persons who are the legal representatives of the deceased. (iii) whether the persons who are making the claim or third parties seek to make a tort feasor liable. (iv) if the deceased was himself tort feasor then the liability of the insurer arises only in situations where under the provisions of the Workmen's Compensation Act the employer is liable and consequently the insurer. (v) If he is the owner/insured or driver or a passenger in a private vehicle, the terms of the policy shall govern the liability of the insurer. If none of these situations arises, then the Tribunal has no power to award compensation. 6. Learned counsel refers to a decision of the Division Bench of the Karnataka High Court at Banglore in Jayanthi S.Shetty vs. P.Shivaji Shetty and another(2003) ACJ 809. The Tribunal has examined the scope of Section 163-A of the Act and how claim would be possible by a mother for death of a son in a motor accident which could be even on the ground of his own negligence. The Bench expounded a theory of social justice and said a mother could not be deprived compensation in the evening years of her life. The decision is well taken on the point of sentiments that it expresses but I learn no F.A.O.NO. 3357 OF 2006 5 lesson to apply to this case. The said judgment refers to a decision of the Hon'ble Supreme Court in Kaushnuma Begum and others vs. New India Assurance Co. Ltd. and others (2001) 1 SCC 155. The Hon'ble Supreme Court has dealt with the case of death of a passenger in a vehicle where by a tyre burst an accident had taken place and whether the driver of the vehicle was negligent. The Court found even if he was not negligent, the situation was answering a situation brought through strict liability expounded in Rylands vs. Fletcher (1861) A11 ER 1. This is the scheme under Section 163-A of the Act, which lays down a strict liability basis for compensation, where without having a proof of negligence of another person, a claim could be made. It does not enable the tort feasor himself to claim compensation against the insurer. If law must be understood that every death must result in compensation against the insurer, then we must only see whether there is any policy of insurance that makes available to a representative to make a claim. I have already expressed that there exists no policy terms to make the insurer liable. 7. At the time when the appeal was admitted, the Court had directed suo motu impleadment of the National Highways Authority as party since due to their poor upkeep of highway, there was cow dung on the road and there was an accident. We are still in India where we have cattles loittering or lazying on roads slothfully. We shall probably set different standards for the 21st century. India abounds on several peculiarities on roads and see no situation where a cow or cow dung F.A.O.NO. 3357 OF 2006 6 can get away from the roads. A driver who comes on the road must take appropriate care and know he is driving a vehicle on Indian roads and a certain level of care that Indian conditions impose. I cannot find any negligence or want of care for the maintenance of road as cause for the accident. On the other hand, I would see that the unfortunate death has resulted from his negligent act. The death surely leaves a trail of sorrow for the family. However, I do not see from the facts narrated in the case that they leave any scope for a claimant to make a legally enforceable claim against the insurer. Hon'ble Supreme Court has recently considered a claim as possible against by an insurer under no fault liability under Section 140 of the Act and brought out through the decision in Eshwarappa @ Maheshwarappa and Anro. Vs. C.S.Gurushanthappa and Anr (2010) 8 Scale 263. The liability of the insurer shall be only to pay Rs. 50,000/- with interest at 6% from the date of the petition till date of payment. 8. The appeal by the Insurance Company is allowed on the above terms. [K.KANNAN] JUDGE 5th October, 2010 Shivani Kaushik