IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1586 of 2007 Date of decision:03.08.2010 United India Insurance Company Limited ....Appellant versus Harjit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Neena Madan, Advocate, for the appellant. Mr. Vijay Lath, Advocate, and Mr. Naveen Sharma, Advocate, for respondents 1 to 3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The appeal by the Insurance Company challenges the award passed by the Tribunal on the ground that the deceased was a driver of the vehicle and being a tort feasor himself a claim under Section 163-A, is not maintainable. The learned counsel refers to a decision in Ningamma and another Versus United India Insurance Company Limited-2009 AIR (SC) 3056. The judgment dealt with a case of a person, who had borrowed the vehicle from the owner and the Hon'ble Supreme Court held that the policy of insurance indemnifies the owner and, therefore, a borrower of the vehicle, who steps into shoes of the owner, cannot make a claim against the insurer for his own fault. 2. The situation will be wholly different, in my view, in a case FAO No.1586 of 2007 - 2 - of a claim by the representatives of a person, who was not a borrower, but who was an employee/workman of the owner and where the accident has taken place in the course of his employment. Such a workman shall be entitled to a claim against his employer, no matter he was himself negligent. In this case, although the representatives of the deceased had made a claim that yet another vehicle was involved, it had not been added as a party before the Tribunal. The claim before the Tribunal could be made under Section 163-A only when it is pursued by a person, who was himself not the tort feasor. If it is of a workman, who had died in the accident, the appropriate remedy could have been to lodge the claim before the Workmen's Compensation Act against his employer and the insurer or in the alternative the representatives ought to have made the other vehicle involved in the accident and if a proof had been adduced for negligence of the other vehicle, then it shall become for the Tribunal to take the claim under Section 166 of the Motor Vehicles Act. A claim under Section 163-A by the representatives against the insurer for the death of the driver himself by his own negligent driving is not maintainable. 3. Since this Court is a Court of appeal under Section 30 of the Workmen's Compensation Act, I proceed to examine the case as a claim by the workman before the Workmen's Compensation Act. The claimant contended that her deceased husband was aged 29 years, the postmortem showed the age to be 35 years and the driving licence produced before the Court showed the age to be 32 years. The Tribunal took the age to be 29 years and determined the compensation. I would think the appropriate FAO No.1586 of 2007 - 3 - age could be the age as found in the driving licence for invariably some evidence is given at the time when driving licence is supplied but while drawing up postmortem, age is taken in the absence of any specific document on an approximation by the doctor, who conducts the postmortem. I would take therefore the age to be 32 years and appropriate factor as provided under schedule-IV of the Workmen's Compensation Act for a person aged 32 years is 203.85. Taking the income to be Rs.3,000/-, the amount that shall become payable would be Rs.3,05,775/-. The Tribunal has passed an award providing for Rs.3,50,000/- with interest. The learned counsel appearing on behalf of the Insurance Company pleads that the award of interest ought not have been made since there was a delay in filing the petition. The Court has awarded interest only from the date of the petition and not from the date of the accident. Therefore, the insurer cannot have any grievance about the same The amount shall stand reduced to the amount as amount determined under the Workmen's Compensation Act with interest in the manner provided by the Tribunal. The appeal is allowed in part to the extent that it reduces the liability to Rs.3,05,775/- and the justification for the award is found under the Workmen's Compensation Act and not under the Motor Vehicles Act as has been assessed by the Tribunal. 4. The appeal is disposed off in the above terms. (K.KANNAN) JUDGE 03.08.2010 sanjeev