FAO No. 607 of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 607 of 2003 Date of decision July 7, 2010 The New India Assurance Company Limited ....... Appellant Versus Harish and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN ***** Present:- Mr. Ashwani Talwar , Advocate for the appellant. None for the respondents. **** 1. The claimants have been served but none has put in appearance on their behalf. 2. The Insurance Company is in appeal on two grounds one ; the owner had died even during the pendency of the appeal and no steps had been taken by the claimants to implead the legal representatives. The owner who is insured is a necessary party to the proceedings and the case could not have been proceeded to entertain the claim in the absence of the legal representatives. 3. The owner of the vehicle which caused the accident is the person primarily liable and his non-impleadment will be fatal to the maintainability of the petition. This is so, even if his insurer is in the array of parties. In Avtar Singh Vs. Hazara Singh (1984) ACC 289, it was held that the person impleaded as an owner was neither the owner nor a transferee, nor indeed the insured, the insurer could not be made liable. The effect of non impleadment was dealt with to similar effect in United FAO No. 607 of 2003 2 India Fire and General Insurance Co. Ltd. Vs. Gurmail Kaur 1985 (2) PLR 81. The insurer's liability is founded on the contract of indemnity and if the primary liability ceased for whatever reason, the insurer will also be discharged from liability. The award could not have been passed by the Tribunal without directing the owner of the vehicle to be added as a party. The appeal ought to succeed only on this ground. 4. Even as regards the other ground namely the user of the vehicle for a different purpose than for which it was insured, it is pointed out that was insured as a private vehicle but used as a taxi. The breach of terms of policy by the driver for not having a valid driving licence, the Insurance Company would normally be liable to satisfy the awards for the claimants and recover the same against the owner. But the liability would arise for the Insurance Company only in a properly constituted claim petition where the owner or the representative had been brought on record. The appeal is bound to succeed and the appeal is allowed. It shall be open to the claimants to take independent action by filing appeal against the legal representatives of the owner if they are so advised. In such a proceeding they may point out to the time taken by them in prosecuting the case before the Tribunal and this Court and the issue of bona fides of such prosecution will be decided at the appropriate time if there ever were to be any independent proceedings. (K. KANNAN) JUDGE July 7, 2010 archana