FAO No.2133 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2133 of 2006 Date of Decision. 23.09.2010 National Insurance Company Limited, through its Assistant Manager, SCO No.337-340, Sector 35-B, Chandigarh ......Appellant Versus Rajbala widow of Rajesh, aged 27 years and others ......Respondents Present: Mr. Kamal Sehgal, Advocate for the appellant. Mr. Ravinder Malik, Advocate for the respondents. 2. FAO No.13 of 2007 Rajbala widow of Rajesh, aged 27 years and others ......Appellants Versus National Insurance Company Limited, Narayana Complex, IInd Floor, Rohtak through its Regional Manager, (insurer of Three Wheeler bearing registration No.HR-46-A/9317) .....Respondents Present: Mr. Ravinder Malik, Advocate for the appellants. Mr. Kamal Sehgal, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 on appeal denying liability on the ground that the claim, which was made under Section 163-A of the FAO No.2133 of 2006 -2- Motor Vehicles Act could not have been maintained. The deceased was an owner-driver of the three-wheeler, which dashed against a tree that resulted in the fatal injury. The contention of the learned counsel is that under Section 163-A of the Motor Vehicles Act that dispensed with requirement of proof of negligence ought not to be understood as making possible a claim for the negligence of one's own act. Again a policy of insurance is invariably a policy that provides an indemnity to the insured and there can be no indemnity for one's own death. In a case of death of the insured, the only liability for an insurer could only be if he is a third party to yet another vehicle or to make a claim sustainable against his own insurer, there shall be a personal accident cover. In this case, the policy had been a Comprehensive Policy that included a personal accident cover also for the owner. The additional premium had been paid only for this reason. 2. While a right of enforcement against an insurer under Section 163-A of the Motor Vehicles Act may not be possible either by the owner or a borrower from the owner under an Act only Policy in terms of the judgment of the Hon'ble Supreme Court in Ningamma and another v United India Insurance Co Ltd 2009 ACJ 2010 as well as in New India Assurance Co Ltd. v Sadanand Mukhi and others 2009 ACJ 997, the duty of the Court shall be to see whether under the terms of policy, the owner or the representatives could have a successful claim. The terms of the policy would be material while stating a claim under Section 163-A of the Motor Vehicles Act as per the judgment of the Hon'ble Supreme Court in FAO No.2133 of 2006 -3- Bimlesh and others Vs. New India Assurance Company Limited 2010 (7) SCALE 732. The terms of the policy provides for an insurance cover for personal accident and that is a liability which shall become possible for the insurer to shoulder at the instance of the claim emanating from the representatives of the deceased. 3. The insurance company would still add a second string to its bow to contend that that this liability will be meant only if the driver-owner had a valid driving licence. The driving licence produced was to drive a scooter, motor cycle and car and he did not have a driving licence to drive a three wheeler. A light motor vehicle is an independent category and such a light motor vehicle would include a car as well. Unless the driving skills were shown to be different, a driving licence that allowed for a driving of a car, which is a light motor vehicle shall be taken as sufficient to drive a three wheeler also. The issue whether such a driving skill could be said to be possessed by a person and the licence granted under Section 10 of the Motor Vehicles Act would enure even to include the case of three wheeler is essentially a matter of fact which will have to be decided on the evidence which is placed before the Tribunal. I have not been shown any reason to state that a licence for driving a car could not include a licence to drive a three wheeler. It cannot be taken that the insurer has discharged its burden of proof that this category of licence did not extend to drive a three wheeler. It is wholly a different issue if the vehicle is a 'transport vehicle' which would require a special endorsement under Section 3 of the Motor Vehicles Act. FAO No.2133 of 2006 -4- 4. The liability of the insurer shall in terms of its own admission in the statement and in the grounds of appeal that it shall be restritected to Rs.2 lacs. The award of the Tribunal shall stand modified and the liability shall be restricted to Rs.2 lacs with interest already granted by the Tribunal from the date of petition till the date of payment. 5. Appeal in FAO No.13 of 2007 by the claimant for enhancement of claim shall stand dismissed, in view of my finding that the award itself is liable to be scaled down and cannot be subjected to any enhancement. (K. KANNAN) JUDGE September 23, 2010 Pankaj*