NEW INDIA ASSURANCE CO LTD Vs. SAROJ RANI

JUDGEMENT

(1.) The Insurance Company is in appeal against the award passed for death of a driver of a vehicle, which was involved in motor accident. The basis of the claim in the petition was that insured driver one Balbir Singh was driving the vehicle and when he complained of headache and deceased Shailender Pushp Goyal took to the steering and met with an accident. It was contended in the petition that the tyre of the said car got detached and fell off on account of which the car turned turtle and capsized resulting in injuries to the occupants and fatal injuries to Shailender Pushp Goyal. The response by the Insurance Company was that the deceased was not a 3 rd party as per the Motor Vehicles ActFAO No.367 of 1998 and the vehicle was driven against the terms and conditions of a policy, without authority or consent or approval or knowledge of the car owner. The owner of the car examined himself when he said that the deceased Shailender Pushp Goyal was his relative and he had given the vehicle to him for driving. The suggestion on behalf of the Insurance Company to the owner was that the vehicle was driven only by his driver and he had handed it over without his concurrence. It was also suggested on behalf of the insurer that the driver Balbir Singh had handed over the vehicle to Shailender Pushp Goyal. He further denied the suggestion that he failed to maintain the car in a perfect road worthy condition. In fact, the contention on behalf of the Insurance Company was that there had been negligence on the part of the owner to maintain the car properly and the accident was the result of such mechanical failure of the tyre flying away and the vehicle turning turtle and capsized.

(2.) Now the learned counsel appearing on behalf of the Insurance Company seeks to rely on the statement of the owner, quite inconsistent with his own case before the Tribunal that the vehicle had been entrusted by the owner only to the deceased for driving and he being not a 3 rd party, the Insurance Company is not liable. The case gives right to one of two situations that have distinct legal ramifications.

(3.) The learned counsel refers to decisions of the Hon'ble Supreme Court in Dhanraj Versus New India Assurance Company Limited and another, 2004 8 SCC 553 and Oriental Insurance Company Limited Versus Jhuma Saha (Smt.) and others, 2007 9 SCC 263. Both are being cases of death of owner-cum-driver where there was no personal insurance cover. The Hon'ble Supreme Court in both those cases held that the owner could not be treated as a 3 rd party and, therefore, the liability cannot be fastened. This principle may be inapplicable to a passenger in a vehicle when there was an entrustment of the vehicle by the owner to his own driver and ifFAO No.367 of 1998 an accident had taken place. But when the passenger takes to the driver's seat, he is not a third party, but a person stepping into the shoes of the owner. The learned counsel also refers to a judgment of the Hon'ble Supreme Court in New India Assurance Company Limited Versus Sadanand Mukhi and others, 2009 2 SCC 417, that dealt with a case of a situation where the person, who drove the vehicle, was not a paid driver and, therefore, an act policy will not cover the situation of a person who assumed the risk of driving.