F.A.O.NO. 5366 OF 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 5366 OF 2005 Date of decision:6th September, 2010 United India Insurance Company Limited, SCO No. 72, Phase IX, Mohali, Tehsil Mohali Ropar through Shri D.K.Behera, Assistant Manager, Regional Manager, United India Insurance Co. Ltd., S.C.O. No. 123-24, Sector 17, Chandigarh. .......Appellant Versus Kamaljit Kaur and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Manmohan Advocate for Mr. Suman Jain, Advocate, for the appellant. None for the respondents. 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 claim arose out of the death of a scooterist who was hit by another vehicle. The scooterist died and the legal representatives or the claimants, the owner and the insurer of the other vehicle were not impleaded as parties and the claim was made under Section 163(A) of the Motor Vehicles Act (hereinafter referred to as the 'Act') only against the owner and insurer of the scooter where the deceased was driver. Since the application has filed under Section 163-A of the Act, the F.A.O.NO. 5366 OF 2005 2 contention of the insurer was that the deceased was earning more than Rs. 4,500/- per month and the application under Section 163-A of the Act itself was not maintainable. The contention relating to the ceiling on income for a claim under Section 163(A) of the Act is justified and I would find it to be an adequate reason to uphold the contention of the insurer. The insurer's liability could still be tested for a claim under Section 166 of the Act. After all, the death had resulted by the use of motor vehicle and the driver has also died in the accident. The owner of the vehicle has covered the risk under a package policy that includes the liability of the insurer to any driver of the vehicle provided, he had a valid driving licence. Extra Premium has also been paid for covering the risk to the driver under the terms of the policy. 2. This in my view, would protect the interest of the driver for by the definitions contained in the Act, it is not necessary that the 'driver' should be only a paid driver. A paid driver could be entitled to a cover as a workman even under Section 147 of the Act but in this case, a person who is not a paid driver is nonetheless a driver whose risk for death or injury is covered under a package policy. The terms of policy as governing the entitlement was still reserved by the Hon'ble Supreme Court, even while rejecting the plea of the representatives of a borrower of a vehicle making a claim against the insurer and the owner. In the judgment of Hon'ble Supreme Court in Ningamma and another Versus United F.A.O.NO. 5366 OF 2005 3 India Insurance Company Ltd. (2009) ACJ 2020 and the another decision of the Hon'ble Supreme Court in New India Assurance Company Limited versus Sadanand Mukhi and others(2009) 2 SCC 417 dealt with the non liability of the insurer where only an Act Policy was taken and the Court said that there shall be no liability for the insurer to cover such risk. The two decisions will not assist the insurance company, since the liability of the insurer could be fastened under special terms of the policy that covers the risk to the death caused by the use of the motor vehicle by the driver. If the liability is seen as tenable, the issue of quantum of compensation becomes impermissible for the insurer to urge. The award of the Tribunal against the Insurance Company under such circumstances is sustained and the appeal is dismissed. [K.KANNAN] JUDGE 6th September, 2010 Shivani Kaushik