K. Kannan, J. - (1.) BOTH the appeals are at the instance of the Insurance Company and the claimants, the former seeking for exclusion of the liability and the latter for enhancement of compensation. The accident was a result of the driver of the Motor cycle hitting a pole on the footpath and coming by fatal injuries. The deceased driver of the Motor cycle was a borrower of the vehicle from the owner -insured. The owner was Mr. Azad s/o Murari in whose name the insurance policy was taken. The policy was a package policy that covered the risk to third party as well as to own damage of the vehicle. It also included claims up to Rs. 1 lac for personal accident. The person that was authorized to drive was a person who had an effective driving license. The Court below awarded a compensation of Rs. 1 lac on the basis of personal accident cover. The Insurance Company is on appeal contending that the personal accident cover shall be available only to the person who was the insured and it cannot be availed by a person who is a borrower of the vehicle from the owner -insured. The claimant is on appeal contending that the package policy will avail unlimited liability for any accident that arose by the use of vehicle that resulted in the fatal injury. According to the claimants the compensation would require to be assessed in light of the formula provided in Schedule -II under Section 163 -A of the Motor Vehicles Act.
(2.) AS regards the liability of the Insurance Company, it has to be covered exclusively by the provisions of the Act and to the extent to which the policy cover makes possible a claim for recovery against the Insurance company. The Motor Vehicles Act provides for a no fault liability under Section 140 for the use of a Motor Vehicle without having to prove the negligence of any person and it is irreducible amount that the Section provides which will be given at all times without having to prove any negligence. In any other situation the Act must be seen as assimilating the principles of tort. The strict liability under Section 163 -A must also be seen in the context of making irrelevant the proof of negligence where negligence of another party is involved. If the driver of the vehicle himself was at fault there is no question of relieving him of the need of proving the negligence of yet another party. A tort feasor who comes by harm to himself leaves no trail of claim possible at the instance of the legal representatives under Section 163 -A. Even the claim therefore for compensation in the manner provided under Section 163 -A Schedule -II does not therefore arise. The entitlement of any person who held a valid driving license to drive any vehicle would only mean that the deceased driver was a person authorized to drive and if there had been an accident involving a damage to the vehicle or had resulted in any damage or injury to the third party, the Insurance Company would have been still answerable for the consequences of such an accident. This clause will therefore provide for indemnity to the owner for any claim arising at the instance of the third party or any damage resulting to the vehicle itself. It shall not give rise to a claim by the legal representatives of a deceased driver who was not the insured himself and therefore the question of providing a cover under personal accident cover does not arise in the very nature of things. Personal accident cover must be understood as a contract between the insurer and the insured for anything personal to the insured. The liability cannot be fastened on the Insurance Company for any person other than the insured under the personal accident cover. The Insurance Company cannot be therefore made liable for Rs. 1 lac which was the personal accident cover extended to the insured. The liability cast to that extent to the Insurance Company was therefore erroneous. The only benefit which the claimant would obtain against the Insurance Company is the liability which it has to bear under no fault liability under Section 140 of the Motor Vehicles Act, 1988, as held by the Supreme Court in Eshwarappa @ Maheshwarappa and another vs. C.S. Gurushamthappa and another : 2010 8 Scale 263. The liability shall be therefore only restricted to Rs. 50,000/ - with interest at 7.5 % per annum from the date of petition till the date of payment. The award of the Tribunal is modified and the appeal of the Insurance Company is allowed to the extent to restrict its liability to Rs. 50,000/ - with interest as stated above. The appeal filed by the claimant FAO No. 5458 of 2012 shall fail and it is dismissed.;