FAO No.1892 of 2003 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1892 of 2003 Date of Decision. 16.09.2010 New India Assurance Co. Ltd., through its Asstt. Manager, Regional Office SCO No.36-37, Sector 17, Chandigarh ......Appellant Versus Smt. Baljit Kaur and others ......Respondents Present: Mr. Piyush Gagneja, Advocate for Mr. N.K. Khosla, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. 1. The insurance company is on appeal granting compensation for death of the son of claimant, who died in collision with the scooter PCH-9151 driven by the 3rd respondent in the claim petition and owned by the 4th respondent. The petition had been filed under Section 163-A of the Motor Vehicles Act and it was pointed out by the respondents No.3 and 4 that the vehicle had not been involved at all in the accident and that even entry in the DDR recorded immediately after the accident referred to a scooter bearing No.PBE 2440 as having been involved and that the owner of the vehicle was one Gurnam Singh. The case had also been filed only against Gurnam Singh initially but later substituted for Gurbax Singh arrayed FAO No.1892 of 2003 -2- as the 4th respondent in the claim petition. Although evidence was led through witnesses on the side of the petitioner that it was the driver of the scooter, Jaswinder, who was responsible for the accident, the witnesses made no effort to reconcile the mistakes pointed out as to the discrepancy in the registration number of the vehicle as found in the DDR and the details given in the petition. The Tribunal, therefore, found that it was not established that R-2 and R-4, namely the driver and owner of the scooter PCH-9151 were responsible for the accident. 2. The deceased was the son of the owner of the motor cycle. The father had been arrayed as 2nd respondent in the claim petition. The insurance company for the motor-cycle, which he was driving was also a party and the Tribunal held that it was problematic to establish the identify of vehicle that caused the accident and hence made the insurer of the vehicle in which he was driving liable under Section 163-A of the Motor Vehicles Act. In my view, a son of an owner or a borrower from the owner will have no cause of action for making a claim against the insurer of the vehicle in terms of the judgment of the Hon'ble Supreme Court in Ningamma and another v United India Insurance Co Ltd 2009 ACJ 2010 . The liability for insurer could arise only if there is a valid insurance for the owner to cover the risk of any driver to drive the vehicle. Unfortunately, for me I have no assistance of a counsel from the insurance company to give me details of the insurance policy. It is not possible to sustain the award against the insurer without a reference to the fact of any terms of the policy that could enable the representative of the FAO No.1892 of 2003 -3- deceased to make a claim against the owner's insurer. 3. The award of the Tribunal is set aside and the matter is remitted to the Tribunal for consideration of the liability of the insurer in terms of the judgment of the Hon'ble Supreme Court referred to above and particularly in terms of the policy to find whether there is a valid insurance to a driver of an insured's motor cycle. If there had been a cover for such risk, insurer will undoubtedly be liable. If it was merely an Act Policy, the driver cannot be treated as a third party and the driver being the son could also not be termed as a workman to whom the Workmen's Compensation Act would apply. The Tribunal will take a decision on the basis of the policy details. 4. The award is set aside and the appeal is allowed in the above terms. For appearance of the parties before the Tribunal on 28.10.2010. It is clarified that in view of the finding already rendered by the Tribunal that the negligence of R-3 and R-4 was not established, the case will now stand reopened only for considering the claim vis a vis the insurer and the owner of the vehicle namely respondent Nos.1 and 2 in the claim petition. (K. KANNAN) JUDGE September 16, 2010 Pankaj*