The New India Assurance Company Limited vs Veerpal Kaur and Others

K. Kantian, J.—The appeal is by the Insurance Company denying the liability for a claim arising out of death of a driver of a private vehicle

that had been insured with the Appellant. The claim had been made u/s 163-A of the MV Act on an averment that the vehicle had met with an

accident, when the tractor belonging to the 2nd Respondent before the Tribunal and driven by the 1st Respondent capsized with the fodder that

was being transported in the trolley attached to the tractor.

The driver was alleged to have escaped from the spot and the fact of death was known to the brother-in-law of the deceased Inderpal Singh only

the following day. He had made a complaint to the police making a reference about the fact that there was a tractor trolley with fodder spilt all

around the spot of the accident where he found his brother-in-law dead. The police was reported to have recorded a statement from a person

called Ranjit Singh, who was alleged to have borne personal witness to the accident, when he was passing by that way. He was also examined as

AW1 before the Tribunal.

As regards the factum of the accident involving the tractor, the driver of the tractor himself gave evidence as RW2 stating that his vehicle was

not involved itself in any accident and that further the 2nd Respondent himself was not the owner of the tractor. He admitted, however, that the 2nd

Respondent had applied to the Court to get the vehicle released on his supardari. He contended that his mother was the registered owner of the

tractor but she was not alive. The Insurance Company had filed the statement denying the liability and contested the maintainability of the petition

u/s 163-A. The Tribunal, on consideration of all evidence found that the alleged eyewitness account of Ranjit Singh could not be believed. It was

most unlikely that he could have seen the accident but still did not make a complaint about the same till next day when he chanced to attend the

bhog ceremony of the deceased and it was only at that time, he narrated the incident to his other relatives and later he also gave statement to the

police. In the manner in which the incident was narrated by AW1, it certainly seemed very artificial and the Tribunal was, therefore, justified in

rejecting the evidence of the witness. The author of the complaint was himself not an eyewitness and, therefore, the whole incident of the accident

as involving the insured''s tractor had to be tested only on the evidence that was brought to bear before the Tribunal through the evidence of RW2,

who was the driver of the tractor. Unfortunately, in this case, it was not clearly brought out by examination of the Investigating Officer himself as to

how the involvement of the tractor was suspected. If there was evidence that the tractor itself was still standing in the same place or that any

tangible evidence was picked up from the spot and forensic evidence was available by identifying the materials available near the place of accident

with the materials that had been found stacked in the tractor, then it would have lent credibility to the contention that the tractor had been involved

in the accident. However, if the whole case had to be decided only on the account of RW1 and PW1 which were discarded by the Tribunal, I

cannot fault the reasoning of the Tribunal for rejection of the claimants'' story that the vehicle of the Respondents 1 and 2 had been involved in the

accident.

If the claim must therefore be examined from the context of the driver of a vehicle, who had borrowed the vehicle from another person and met

with an accident whether a claim could be made against the insurer of the very same vehicle, then the case could be decided in favour of the

claimants only if the terms of policy made possible a right of enforcement of the claim for death or bodily injury arising out of motor accident of a

driver. I have seen through the terms of the policy and the premium had been paid only for the claim arising due to an accident of a paid driver,

who was required to be covered under the Workmen''s Compensation Act. There was also a personal accident cover for the owner herself. Even

if the driver was not himself negligent, it was immaterial, since the liability of the insurer arises only under a contract of insurance and there is no

provision in the insurance policy to cover the risk for the driver, who had borrowed the vehicle from the owner and had involved himself in an

accident and received fatal injuries. It has also been decided by the Hon''ble Supreme Court in Ningamma and Anr. v. United India Insurance

Company Limited (2009-4) 156 PLR 796 (SC) that the driver, who borrows the vehicle from the owner cannot lead a valid cause of action for his

representatives to make a claim against the insurer of the vehicle which he was himself driving. Section 163-A relieves a party of proving

negligence of the person, who caused the accident. If the involvement of the tractor had been proved, then it should have become possible to

sustain the claim u/s 163-A against the owner and driver of the tractor but if the involvement of the tractor is not established, then the claimants

cannot secure compensation against the insurer of the vehicle which he was driving in the absence of specific terms making possible the liability.

The award of the Tribunal granting compensation against the insurer was, therefore, clearly untenable. The Insurance Company has no liability to

cover the risk to the driver of a vehicle, who was involved in the accident so long as there was no specific term in the policy for such a course.

Even though the Insurance Company could not be made liable under the policy, by the fact that the death had occurred by the use of a motor

vehicle, the Insurance Company will be liable under ''no fault liability'' and shall become liable to pay Rs. 50,000/- u/s 140 in the manner

contemplated in Eshwarappa @ Maheshwarappa and Anr. v. C.S. Gurushanthappa and Anr. (2010-4) 160 PLR 399 (SC).

The award is set aside and the appeal is allowed but subject to liability of the Insurance Company to Rs. 50,000/- with interest as awarded by

the Tribunal.