IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3723 of 2010 (O&M) Date of decision:06.01.2011 Reliance General Insurance Company Limited ....Appellant versus Roshan Lal and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Subhash Goyal, Advocate, for the appellant. Mr. Ashish Gupta, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The Insurance Company is in appeal seeking for exclusion of liability that the vehicle which was involved in the accident was driven by a borrower from the owner and in terms of the decision in Ningamma and another Versus United India Insurance Company Limited-2009 ACJ 2010, the Insurance Company would not be liable. The Tribunal had cited Ningamma's case but held that it was a package policy and, therefore, the Insurance Company will be liable. 2. If there is a package policy, it will definitely provide a right of enforcement of a claim for a passenger in a vehicle who comes by harm by the act of the driver of the insured's vehicle. Clauses 3 and 4 in Section II of the policy makes possible a liability of third party for an act FAO No.3723 of 2010 (O&M) - 2 - of a driver and in the event of death of such a person, who is entitled to indemnify the Insurance Company would still be liable for any liability incurred by such person. The relevant clauses in the policy are reproduced as under:- “3. In terms of and subject to the limitations of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured's permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of this policy in so far as they apply. 4. In the event of the death of any person entitled to indemnity under this policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative in terms of and subject to the limitations of this policy provided that such personal representative shall as though such representative was the insured observe fulfill and be subject to the terms exceptions and conditions of this policy in so far as they apply.” 3. In my view, clauses 3 and 4 deal with liability incurred by a driver by his act and does not refer to a right of enforcement of any claim for a representative of a driver himself. If the driver or a workman to whom the benefits of Workmen's Compensation Act would be applicable, then the claim by the representative against the owner and the insurer would be possible by virtue of the requirement of compulsory insurance under Section 147 of the Motor Vehicles Act. Here it is nobody's case that the deceased was a workman to whom the benefit of WC Act was applicable. This Court has dealt with a similar situation in FAO No.3723 of 2010 (O&M) - 3 - the case of Bajaj Allianz General Insurance Company Versus Baljinder Singh and another in FAO No.4689 of 2007, decided on 13.09.2010, where the terms of the policy have been reproduced and interpreted in the way that is referred to above. This Court has held in the above case as follows:- “If the policy merely provided for a personal accident cover for owner/driver, a person who borrows such a vehicle cannot obtain any right of action against the insurer. The indemnity to a driver, which the terms of the policy contemplates is to provide a cover for his act that results in death or injury to any third party. A driver of a vehicle, who is involved in the accident is not to be treated as third party and, therefore, I am of the view that the claimant is not entitled to make such a successful claim against the insurer of the vehicle, which he was driving.” 4. The learned counsel appearing for the respondent refers to a decision of this Court in ICCI Lombard General Insurance Company Limited Versus Jagdish-2010 (3) RCR (Civil) 672, to contend that a person, who meets with the accident while driving his own car would still leave a trail for a claim at the instance of the legal representatives under Section 163-A of the MV Act. This Court was dealing with the case of comprehensive policy which covered the risk to an owner of the vehicle and the Court was holding the insurer liable under a specific term of the policy granting a personal accident cover. A personal accident cover is invariably personal to the person who is insured and it cannot avail to the instance of a borrower of the owner/insured. The above decision will not apply to the facts of this case. The award of the FAO No.3723 of 2010 (O&M) - 4 - Tribunal is set aside and the appeal by the Insurance Company is allowed. The amount which was deposited by the appellant shall be permitted to be withdrawn by the appellant. (K.KANNAN) JUDGE 06.01.2011 sanjeev