IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.495 of 1993 (O&M) Date of decision:18.11.2010 Smt. Akhtari Begum and others ....Appellants versus Vinod Kumar and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. K.G. Chaudhry, Advocate, for the appellants. Mr. Sanjiv Pabbi, Advocate, for the Insurance Company. ---- 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 is by the representatives of the driver in a private vehicle whose claim for compensation was restricted only for liability on no fault basis under Section 140 and compensation of Rs.25,000/- alone had been given. The accident was said to have taken place when the driver dashed against a tree and succumbed to the injuries. The claimants contended that there was a mechanical defect in the vehicle that resulted in the accident. The Tribunal held that in such a situation, the liability could be only on a no fault basis statutorily restricted to Rs.25,000/- under Section 140. 2. There was evidently an error in the choice of forum which the claimants had adopted. Motor Vehicles Act recognizes only the tort FAO No.495 of 1993 (O&M) - 2 - principle of liability and provides a forum for an adjudication. The only exception to the theory of fault is what is provided under Sections 140 and 163-A. In this case for a fuller compensation, the appropriate remedy ought to have been only under the Workmen's Compensation Act since admittedly the deceased was a paid driver under the owner of the car. The liability ought to have been, therefore, only against the owner. The liability under the WC Act is compulsorily insurable and the Insurance Company would also be liable under the terms of policy. However, in this case, the defence by the Insurance Company was that the vehicle had been used as a taxi when the policy of insurance was only for private use. The unauthorized user was even an admitted fact and the claimant, who was the widow herself admitted that her husband was driving the vehicle as a taxi. If there was a violation of terms of policy, the Insurance Company is entitled to be exonerated and even the issue of pay and recover which is protected under Section 149(4) proviso and 149 (5) do not apply. The liability to first make the payment and recover a principal which was enunciated and applied in many decisions commencing from New India Assurance Company Versus Kamla- (2001) 4 SCC 342 cannot be applied to a situation where the claim is possible only under the WC Act. There the Insurance Company is entitled to take up all defences and restricted to what is provided by Section 149. I will, therefore, hold the insurer shall not be liable to satisfy any claim arising out of the accident. 3. The Tribunal had already ascertained a compensation amount of Rs.2,16,000/- but still restricted it only to Rs.25,000/- by FAO No.495 of 1993 (O&M) - 3 - invoking Section 140 on no fault basis. I will consider this Court as an appellate forum under Section 30 and take the amount determined as the amount payable under the WC Act and the owner will be liable for the entire amount. The right of enforcement of the claim shall be available for the claimants in excess of what was already provided by the Tribunal with interest at 12% per annum from the date of petition till date of payment. 4. The appeal by the claimants is allowed only against the first respondent and it is dismissed against the Insurance Company-2nd respondent. Any amount recovered by the claimants from the insurer shall be recovered by the insurer only against the owner and not against the claimants. (K.KANNAN) JUDGE 18.11.2010 sanjeev