FAO No. 5520 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5520 of 2010 Date of decision:15th March, 2011 Smt. Darshan Kaur and another .......Appellants Versus Subodh Kumar and another ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.S.Mamli, Advocate for the appellants. None for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporters or not?No 3. Whether the judgment should be reported in the Digest? No K.KANNAN, J.(Oral) 1. The appeal is against the dismissal of the petition for compensation for death of a person who was riding the first respondent's motor cycle and died in a collision with an unknown vehicle and the compensation was sought against the owner of the motor cycle which the deceased was riding. The Insurance Company also could not be made liable since the Tribunal found that he was merely a borrower of the vehicle and there is no right of action against the owner for his own act when the offending vehicle could not be traced. FAO No. 5520 of 2010 2 2. Learned counsel appearing for the appellants points out that at the relevant time when the accident had taken place he was in the course of employment of one Gurdip Singh and Balwinder Singh and since the death has resulted during the course of employment by the use of motor cycle the employer and the insurer must have been made liable. Such a contention may be possible in appropriately constituted petition before the Workmen Compensation Commissioner where the employer himself is also a party. In this case, even the employer is not made the party and it is not possible for this Court to give an adjudication of whether the accident had resulted only during the course of employment or out of employment. I can not find fault with the order of the dismissal of the petition. 3. The appellants shall be at liberty to file an appropriate petition before the Workmen Compensation Commissioner and seek for an adjudication in accordance with law. The time taken by the claimants in prosecuting the case before the Tribunal and before this Court may be considered for exclusion while deciding the issue of limitation by the Workmen Compensation Commissioner. The appeal is dismissed but subject to the observations with liberty as mentioned above. [K.KANNAN] JUDGE 15th March, 2011 Shivani Kaushik