UNITED INDIA INSURANCE COMPANY LTD. Vs. SHARADA

JUDGEMENT

(1.) HEARD Shri B.S. Saragaon, learned counsel for the appellant and Sri. Harshavardhan R. Malipatil, learned counsel for the respondent No. 1 - claimant. The appellant is the Insurance Company questioning the liability that is sought to be fastened on the Insurance company in respect of a claim before the Motor Accident Claims Tribunal (MACT) in the following background:

(2.) WHETHER the respondent No. 2 proves that the insurance company is not liable to pay any compensation, as petitioner has died due to his own negligence in riding the vehicle in rash and negligent manner?

(3.) THE learned counsel for the appellant, by way of reply, would contend that the finding of the Tribunal as to the package policy pertaining to two wheelers containing specific clauses, which cover the risk of a rider of a motorcycle apart from the owner -insured of the vehicle is not forthcoming. The relevant clauses from which the Tribunal has drawn inspiration refers to a driver of the vehicle and not a rider of a vehicle. The same cannot be extended to a two wheeler. There is no such clause which is to be found in the fully worded contract, which attracts the liability of the insurer in respect of a rider, who has borrowed the vehicle from the insured. It is also pointed out that though Ningamma's case ( : AIR 2009 SC 3056) was remanded by the Apex Court, the question whether a person who has borrowed a two wheeler from the insured can be considered as a third -party in addressing his claim for compensation, has been answered in the negative and that has attained finality. The order of remand merely requested the High Court to re -consider whether the claimant could be afforded compensation under any other provision of law and on such remand, the High Court has modified its earlier judgment restricting the compensation to a sum payable under Section 140 of the MV Act. Therefore, the question whether a person who has borrowed the insured's vehicle, could claim compensation as a result of an accident to the vehicle when riding it, has been squarely answered. In so far as reference to Sinita's case ( : AIR 2012 SC 797) is concerned, it is to be seen that the Apex Court in that case, has not referred to the decision in Ningamma's case and the observation that the insurance company ought to have established the relationship between rider and the insured of the vehicle was, therefore, without reference to Ningamma's case supra and would not assist the claimant and the learned Counsel hence seeks that the award be modified to restrict the liability, if at all, of the insurer to the extent of Rs. 1,00,000/ -. In the light of the above contentions, since the Tribunal has held that the contract of insurance did attract the liability of the insurer, the clauses of the contract, namely, the Standard Form for Two Wheeler Package Policy was closely examined. The reliance sought to be placed is on Section -II of the said contract, which pertains to liability to third -parties and the relevant clauses are reproduced hereunder for ready reference.