IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4777 of 2009 (O&M) Date of decision:09.09.2010 ICICI Lombard General Insurance Company Limited ....Appellant versus Smt. Pooja Rani and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Vandanaa Malhotra, Advocate, for the appellant. None for the respondents. ---- 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 on the issue of liability on the ground that the person that died was a borrower of a vehicle and he had involved himself in an accident that resulted in his death by his negligent driving. The learned counsel would refer to the decision of the Hon'ble Supreme Court in Ningamma and another Versus United India Insurance Company Limited-2009 ACJ 2020 and contend that no cause of action would survive to the legal representatives for a person, who himself was the tort feasor and who had merely stepped into shoes of the owner. The Tribunal, however, granted a compensation of Rs.1 lakh on FAO No.4777 of 2009(O&M) - 2 - a personal accident policy which covered the risk to the owner-driver for death or bodily injury. It was contended by the learned counsel that a personal accident cover is personal and cannot be transferred. The liability of the Insurance Company would, therefore, be only to cover the risk to the owner and not to a borrower from the owner. I accept the contention to be legally sound and would hold that the policy of insurance will not cover the risk to a borrower of the vehicle or the owner, who had invited a fatal injury at his own negligence. 2. Even in such a situation while setting aside the award, I would hold that the claimant would be entitled to obtain a compensation of Rs.50,000/- under no fault liability provided under Section 140 of the MV Act. It has been laid down by the Hon'ble Supreme Court in Eshwarappa @ Maheshwarappa and another Versus C. S. Gurushanthappa and another in Civil Appeal No.7049 of 2002, dated 18.08.2010 that a claim under Section 140 may be made not merely as in terms of the award but it could be even at the time of the final disposal. It was also held in the same judgment that scheme of the Act is to relieve representatives of extraordinary hardship and that is why a non obstante clause is used in Section 140(5) of the MV Act. I, therefore, while setting aside the award of the Tribunal granting Rs.1,50,000/- on the basis of personal accident cover, allow for a claim for Rs.50,000/- to the representatives of the deceased in the manner provided under Section 140 of the MV Act and as interpreted by the Hon'ble Supreme Court in the case referred to above. The appeal is disposed of in terms of the above directions. The amount which is already deposited by the FAO No.4777 of 2009(O&M) - 3 - Insurance Company shall be transferred to the Accidents Tribunal and the claimants shall be permitted to withdraw the same. Needless to state that any amount in excess of what this award provides for shall be allowed to be withdrawn by the Insurance Company. (K.KANNAN) JUDGE 09.09.2010 sanjeev