NEW INDIA ASSURANCE CO LTD Vs. VEERPAL KAUR

JUDGEMENT

(1.) 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 under Section 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.

(2.) 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 under Section 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.

(3.) 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 156 PunLR 796 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 under Section 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.