What if the
cheque given for payment of premium of insurance policy is dishonoured What is the meaning of “Arising out of use of Motor Vehicle”
Liability of insurer to pay compensation in the cases where injured claimant or deceased was travelling in the private car as
occupants or travelling on two wheeler as pillion rider:-
1. Reference may
be made to the ratios laid down in the cases of Deddappa v/s National
Insurance Com. Ltd.,
reported in (2008)
2 SCC 595 = AIR 2008 SC 767 = 2007 AIR SCW 7948 and United India Insurance
Com. Ltd v/s Laxmamma, reported
in 2012 ACJ 1307 (SC). In both these judgments, it has been held that when cheque given for payment of premium of policy, is dishonoured
and on that count Insurance Company cancels the policy by intimating the insured of such dishonour
of cheque before the date of accident,
then in such situation Insurance
Company cannot be held liable
to pay amount of compensation but if insurer fails to intimate the insured about such
dishonour and cancellation of policy before the date of accident, then in such situation insurer
is held liable to pay amount of compensation
and Insurance Company may prosecute its remedy
to recover the amount paid to the claimants from the insurer.
2.
What is the meaning of “Arising out of use of Motor Vehicle”:-
Legislature has advisedly used the
expression 'arising out of the use of
motor vehicle' and not 'connected with the use of motor vehicle' under Sections
140, 163A and 166 of the Act and, therefore, there must be more direct and pronounced linkage or nexus between the use of motor vehicle
and the accident
which has resulted.
A mere casual connection is not sufficient.
To decide the such issue one may
advantageously refer to the judgment delivered
by Hon'ble Apex Court, reported
as Shivaji Dayanu
Patil and Anr. v. Vatschala
Uttam More, (1991)
3 SCC 530 = AIR 1991 SC 1769.
In the said case, Hon'ble Apex Court considered at length, the questions whether
the fire and explosion of the petrol tanker in which deceased
lost his life could be said to have resulted
from an accident
arising out of the
use of a motor vehicle, namely the petrol tanker. The court answered the question in the affirmative,
that is to say, in favour of the claimant and against the insurance company.
It is true that the case Shivaji
Dayanu Patil (supra) arose from the claim for nofault
compensation under section
92A of the 1939 Act (u/s
163A of the New Act). All the material facts were considered at length by Hon'ble
Apex Court in above referred
case and, therefore, said principle is also applicable in the claim petition
preferred u/s 166 of the Act.
Ratio laid down by Hon'ble Apex Court
in the case of Shivaji Dayanu Patil
(supra) is also relied upon by Hon'ble
Apex Court in several decisions, namely, Samir Chanda,
v/s Managing
Director, Assam State Transport
Corporation, reported in AIR 1999 SC
136 and Smt. Rita Devi v/s New India Assurance Co. Ltd., reported in AIR 2000 SC 1930 and New India Assurance Co. Ltd. v. Yadu Sambhaji
More, reported in AIR 2011 SC 666.
Similar view
has been taken in the case of Kalim Khan v/s.
Fimidabee, reported in AIR 2018 SC 3209 = 2018 ACJ 2015 (SC). Where deceased succumbed to the injuries while he was working
in his field and a rock from adjacent field
fell on him. In the adjacent field digging for well had been going on. The digging machine
was powered by using battery
of a tractor.
3.
Liability of insurer to pay compensation in the cases where injured claimant or deceased was travelling in the private car as
occupants or travelling on two wheeler as pillion rider:-
In the recent
decision, Hon'ble Apex Court in the case of National
Insurance Company Ltd. v. Balakrishnan, reported in AIR 2013 SC 473 has held in para No.21 that:
“comprehensive/package policy" would cover the liability of the
insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act
Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars
have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies
stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute
in that regard. We may hasten to clarify that the earlier
pronouncements were rendered
in respect of the "Act
Policy" which admittedly cannot cover a
third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered”.
In view of the observations made by Hon'ble
Apex
Court in the case of Balakrishnan (supra),
occupant of private car or the pillion rider of two
wheeler is entitled to recover amount
of compensation from insurer, provided the offending vehicle
is covered with the 'Comprehensive/ Package Policy'. Reference
may also be made to ratio laid down in the case of Oriental
Insurance Company Ltd. v. Surendra
Nath Loomba, reported
in AIR 2013 SC 483.
Legislature has advisedly used the
expression 'arising out of the use of
motor vehicle' and not 'connected with the use of motor vehicle' under Sections
140, 163A and 166 of the Act and, therefore, there must be more direct and pronounced linkage or nexus between the use of motor vehicle
and the accident
which has resulted.
A mere casual connection is not sufficient.employee – claimants contended that as the addition premium paid by the insured towards PA cover for unnamed person includes coverage to employee of the owner whether under these circumstances – IC can be held responsible? Held – No. As the addition premium paid by the insured towards PA cover for unnamed person excludes coverage to employee of the owner. 2021 ACJ 2379 (Mad).
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