IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2333 of 2006 Date of decision:01.09.2010 The Oriental Insurance Company Limited ....Appellant versus Jagdish Singh and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. S.P.Singh, Advocate, for Mr.Amit Rawal, Advocate, for the appellant. Mr. Brijinder Kaushik, Advocate, for respondent No.1. ---- 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 Insurance Company is in appeal challenging the award on the ground that a claim petition under Section 163-A was not maintainable at all. This maintainability is urged again on two grounds: (i) that the injured driver of the vehicle was said to have an income of an amount in excess of Rs.40,000/- and, therefore Section 163-A which provides for its application under Schedule-II does not extent to claims for persons whose income is more than Rs.40,000/- per annum; (ii) the second objection is that the driver, who had originally filed a petition FAO No.2333 of 2006 - 2 - under Section 166 making another truck as responsible for the accident later withdrew the same and made claim for insurance against the owner and the insurer of the very vehicle which he was driving. In my view the insurer ought to succeed on both grounds. 2. The limitation of income prescribed under Section 163-A and Schedule-II is to protect a class of persons falling within a particular income group to ensure speedy justice and relieve them of the duty of having to prove negligence. If the claimant was seeking a claim setting out his own income being excessive of Rs.40,000/- then his right cannot be pursued under Section 163-A. 3. A mere fundamental and a serious flaw in the petition is the assumption that Section 163-A while casting a strict liability regime does not merely require proof of negligence but even the negligence of one's own driving can constitute a cause of action. In an action against another truck which was involved, to which he is a third party, by virtue of Section 163-A, there may not have been a requirement to prove negligence. If a person is making a claim against the owner of the very vehicle which he was driving and against the insurer, the person, who is not a workman to whom the benefit of Workmen's Compensation Act is available and who is but a borrower of a vehicle cannot successfully prosecute a claim against either the owner or the insurer in cases where the policy was no more than an Act policy under Section 147. In such a situation a claim by a workman to whom the benefits of Workmen's Compensation Act are available shall still avail to a driver if he had been a workman. On the other hand, if he is not a workman, then a driver is FAO No.2333 of 2006 - 3 - not a person, who is required to be covered under the terms of Section 147. This aspect of the case has been considered by the Hon'ble Supreme Court in Ningamma and another Versus United India Insurance Company Limited-2009 ACJ 2020. This was also explained in a subsequent case in New India Assurance Company Limited Versus Sadanand Mukhi and others-(2009) 2 Supreme Court Cases 417 where the issue was specifically dealt with by the Hon'ble Supreme Court to a situation of a policy cover which had been issued under Section 147 as Act policy and to which the Hon'ble Supreme Court held that a claim under Section 163-A was not maintainable. 4. The award cannot be sustained for what is legally untenable and held to be so by two recent decisions of the Hon'ble Supreme Court. 5. The award is set aside and the appeal is allowed. (K.KANNAN) JUDGE 01.09.2010 sanjeev