FAO No.3320 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3320 of 1999 Date of Decision. 22.07.2010 New India Assurance Company Ltd., having its Regional Office at SCO 36-37, Sector 17-A, Chandigarh through Sh. S.K. Gupta, Asstt Manager duly constituted attorney .........Appellant Versus Surinder Kaur widow of L/K Gurbhinder Singh and others .......Respondents Present: Mr. Paul S. Saini, Advocate for the appellant. Ms. Indu Bala, Advocate for Mr. B.R. Mahajan, Advocate for respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The insurance company is in appeal pointing out to the fundamental defect in the award that even while casting the negligence on the driver of the tractor, the Tribunal instead of awarding compensation against the owner of the tractor has directed the award against the insurer of the scooter, which the deceased was riding. The Motor Vehicles Act provides for a forum for determination of disputes and adopts the common law principle of tortious liability except for a hit and run case under Section 140 of the Motor Vehicles Act and strict liability claim fixed under Section 163-A of the Motor Vehicles Act. As regards Section 163-A, the tort FAO No.3320 of 1999 -2- feasor will not be entitled to a claim but the law merely relieves the necessity of having the proof of negligence on the person against whom the award is sought. The person, who contributes the accident will still not have a claim under Section 163-A. This narration is only to emphasise that there could be no deviation from the tortious principle of liability for negligence of the driver. 2. The insurer, who answers the claim for a third party indemnifies the insured where there is a policy of insurance. The first pre-requisite, therefore, is that there is a claim possible against the insured or owner of a vehicle. The motor-cyclist dashing against the tractor would have a right of action against the tractor but by no principle of law can the owner of a motor-cycle make a claim against his own insurer. The accident to which such claim will be possible, will still be in the realm of a personal accident cover and any other form of claim against the insurer shall not be possible. For instance, even a comprehensive cover of insurance, which will cover the risk of any passenger, will have to stand the test of the owner or the driver being in the first place liable before an indemnity comes through the insurer by resort to a comprehensive cover. 3. In this case, the Tribunal when it found that the tractor was responsible for the accident could not have made the insurer of the scooter liable. The award of the Tribunal is, under the circumstances, set aside and the appeal is allowed. 4. It appears that during the pendency of the appeal, this Court had allowed for the claimants to withdraw 25% of the amount and the recovery of the remaining was stayed. If the 25% has been FAO No.3320 of 1999 -3- recovered by the claimants, the insurer will have a right to recover the same only against the insured and not against the claimants. It will be always open for the claimants and the insured to have the remedy against the owner of the tractor. The award shall be taken as an award against the owner of the tractor only, who is arrayed as 5th respondent. (K. KANNAN) JUDGE July 22, 2010 Pankaj*