FAO No. 5118 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5118 of 2009 (O&M) Date of decision: 04.03.2010 Harmander Singh ....Appellant Versus Jaswant Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. J.S. Brar, Advocate, for the appellant. Mr. N.S. Virk, Addl. A.G., Punjab, for respondents No.2 and 3. VINOD K. SHARMA, J.(ORAL) This judgment shall dispose of FAO No. 5118 of 2009 titled Harmander Singh Vs. Jaswant Singh and others and FAO No. 5119 of 2009 titled Harmander Singh Vs. Gurdeep Singh and others, as common questions of law and facts are involved. For brevity sake, facts are being taken from FAO No. 5118 of 2009. The respondent-claimants filed a claim petition under Section 166/140 of the Motor Vehicles Act, 1988, seeking compensation on account of injuries suffered by the claimants, in a motor vehicular accident, which occurred on 28.5.2005. The pleaded case of the claimants was, that on 28.5.2008 both the claimants were going to their village Gobindgarh Dabrikhana, from Jaitu on motorcycle No. PB-62-5996, which was being driven by Harphul Singh. At about 9.00 p.m. when they reached at a distance of FAO No. 5118 of 2009 (O&M) -2- about half kilometer from village Kothe Dhilwan, a canter came from opposite direction which was being driven at a high speed. The canter struck against their motorcycle, after coming to the wrong side of the road, as a result of which the claimants suffered injuries. The claimants were taken to hospital. The driver of the canter along with other police officials went away with their canter. It was alleged, that the accident had occurred due to the rash and negligent driving of the appellant. The learned Tribunal, on appreciation of evidence, recorded a finding, that the claimants received injuries in motor vehicular accident on 28.5.2005, when they were travelling on motorcycle bearing No. PB- 62-5996, on account of rash and negligent driving of canter bearing No. PB-04-H-9821, which was driven by the appellant. Jaswant Singh claimant was held entitled to compensation of Rs.78,756/- (Rupees seventy eight thousand seven hundred and fifty six only), whereas Gurdip Singh claimant was held entitled to Rs.27,209/- (Rupees twenty seven thousand two hundred and nine only) along with interest @ 7% per annum, from the date of filing of the claim petition. The relief granted to the claimants by the learned Tribunal, reads as under: - “In view of findings under the aforesaid issues, both these claim petitions are accepted and it is held that Jaswant Singh claimant of first claim petition is entitled to Rs.78756/- and Gurdip Singh claimant of the second claim petition is entitled to Rs.27209/- from all the three respondents jointly and severally. They are also entitled to interest on the said amount of compensation at the rate of 7% per annum from the date of filing of claim petitions i.e. 29.7.2006 by FAO No. 5118 of 2009 (O&M) -3- Jaswant Singh and 14.6.2008 filed by Gurdip Singh till realization. However, respondents No.1 and 2, if made to pay the amount of compensation, can recover the same from respondent No.3. A copy of this award be placed in the connected file. Memo of costs be prepared. The file be consigned.” The learned counsel for the appellant is only aggrieved by the impugned part of the award vide which the liberty was granted to respondents No.1 and 2, to recover the compensation paid from the appellant. The contention of the learned counsel for the appellant is, that the impugned part of award, is totally without jurisdiction, as once the liability was held to be joint and several, it was not open to the learned Tribunal to have ordered, that the amount after payment could be recovered, from the driver of the offending vehicle i.e. the appellant. It is further the contention of the learned counsel for the appellant, that the direction issued is against the basic Law of Torts, that the employer is bound by the tortuous acts of his employee. The liability of the employer was not under a contract, but a vicarious liability. The remedy with the employer if any could be under service law by taking appropriate action in accordance with service rules, but the learned Tribunal under the Motor Vehicles Act, could not direct that the compensation paid by the owner which was his liability to be recovered from the driver. The liberty to the insurance company, to recover the amount from the owner by the Hon'ble Courts, in some of the cases is, for the reason that even though Insurance Company due to breach of terms of FAO No. 5118 of 2009 (O&M) -4- insurance policy, is held not liable to indemnify the insured is still asked to pay to third party. This principle cannot be applied in case of employee and employer, as the employer has a vicarious liability to pay for the act of employee. The appeal is allowed, the impugned part of the award being without jurisdiction is ordered to be quashed, but with no order as to costs. (Vinod K. Sharma) Judge March 04, 2010 R.S.