:.. . .? .. . V/^*^-^TT-"-^^>LJ^L>^T^;J IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.1 M. A. (-C1 N0. \ ^O ?-QF 2007 APPELLANTS CLAIMANTS ^ <l/--'l ^^ ..-•^\y \6X^^' ^. ..-•"y. y^' ^'"" <0 ^ Smt. Kaushilya Bai Widow of Late Balaram Dhruwanshi, aged about 27 years; Narayan Son of Late Balaram Dhruwanshi, aged about 05 years; Nimesh Son of Late Balaram Dhruwanshi, aged about 02 years; Minor Rukhmani D/o Late Balaram Dhruwanshi, 'he appellant No.2 to 4 are Minors, through their Next Friend Mother Smt. Kaushilya Bai widow of Late Balaram Dhruwanshi; 'AII are resident of Village Joba, Police Station Tumgaon, Tahsil Mahasamund, District Mahasamund (C.G.). VERSUS Neelmarii Sahu Son of Lakhanlal Sahu, aged about 30 years, Resident of Village Silauti, Police Station Bhakhara, Tahsil Kurud, District Dhamtari (C.G.). ^. -<2. United India Insurance Company P^ Limited Branch Office Raipur, through Divisional Manager/Divisional Office, Krishna Complex, Kachahari Chowk, Raipur, Tahsil and District Raipur(C.G.). ^Policy No. 190500/31/05/01234 -validity upto 29.06.2005 to 28.06.2006. MEMO OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 HI6H COURT OF CHUArTtSSAftH AT BILASPW OIVISION BENCH! HON'Bi^ AAR. I M.C^&DUSI & HQN'BLE MR. WtAMt MINHAJU&DIN. JJ. Appelkints Respondents tt.A.Icl No.1402/2007 Smt. Kaushilya Bai A olhers Vs Neelmani Sahu Ao-thers Present; Mr. P.P. Sahu, Adwcate for the oppelkmts. Nor»for the re^ontient No.l Aough semed. ! Mr.&as^rath ©upta,Advocate for •thensspaindentMo.2. OR&ER (OraD ^l" June. 2Q11) I.M. Quddwi. J; 1. Heoyd. 2. Thecypelkints have fited this miscelka'ieous.oppeal against the award ctated 06.12.20)6 passed in Ctaim Cose No.03/06 whereby Ihe learned Chief Motor Accident Claims Tribunal, Mahcsamund (C©)(for brevity the Ckiims Trlbunal') hos dismissed 1+ie clohn cpplication of the oppellants herein. 3. Facts of the case, in brief, are that the appellants herein havc fUed a cldim petition under Section 163-A of the Motor Vehictea Act, 1W8 (for short *the Act, 1988') before the Claims Tribunal seeking cempensation to the lune of Rs.11,00,000/- for-the dea-thOf (teceased Balaram bhruvwanshi, who died on 12.12.2(X®on accoint of injuries sustained by him in on accident took (rface on 09.12.2005 due to mechanical failure of motor cycle bearin9 registration No. C609-ZE-5210. 4. The Ctaims Tribunal, after hearih9 -the parl'ies twid considcring material brought on record by Ihe part-ies in support of 1+ieir respective case. dismissed the ckxiin oppticntion as not maintninable. 5. We have heard leamed counael for •the ptirties. We have perused the record of the Claims Tribunat. 6. In the motter of Oriittal Insuranct Company Ltd. Vs. Rajni 0»rireported in (2008) 5 SCC 736 the t-ton-bte Supreme Court ha«held that- Seetien l6a-A of the Motor Vehicles Act, 1988 camwt be said to have wiy wplicatiwi In I'egcwd to an accie/ent wherein the mmer of the motor vehicle ImnseH- is inmlwd. It was further hekl tho* the liability widw Section 163-A of the Act is onty on the . *»"" f\^x -": ^. A ~l'"'S!:S<i!Sfi''fsawWSS!!iV''ft"V!:. i 'k .- ? J ^, %.- ^i' ,/'" '^.ff^'" ^' wmer of the vehiclesince aperson cannot be bath, aelaimant asalsoareciptoit, the heirs of the deceoeed coukl not bave mahrt'maeda etaim m terms of Swtien 163-A of the Act. 7. In the matter of Niiganima & another Vs. United India Insiranct Ctompany Lbnlted reported in (2009) 13 SCC 710 mfwu-ZZ the Hon'ble Supreme Courf- has held thus:- "22. In a case wherein the victim died or where he waa permanently disabled due to on accident urising out of the aforesmd nwtor i^hieie in ;ihat' event the liability to molte poyment of the compensa*ion <s on the insurance company or the oumer, as the ca»may be as provtded urtder Section 163-A. But if tt is proved thot the driver is Ihe ofder of the motor vehicle, in that- case the owner could not himself he a reeitiiei'lt of compensat'ion as the liability to pay the some is on him. Thi< proposition is absoluteiy ciear on a reading of Seci'ion 1&3-A of the MVA. Accordingly, the legat rq)resentfl*ives of the deceased who haw stepped into the shoes of the owner of the mutor vehicle coukl not have cloimed compensation under Sed'ion 163-A ef the MVA." 8. In view of ubov®settled position of lawi, we are of the opinion thcri- the claimants, who are legal representntives of the deceased, whe stq^ed into the shoes of owner of the motorcycle In quesWon, cculd not have ckiimed compensation under Section 163-A of the Act <md aa such the Claima Tribumri has not committ'ed any illegality or impropriety in dismissing the claim application of the claimants. 9. At this stage learned counsel for •theappeltant submits that Ihe deceased had infact not borrowed the vehicle for his work but he was employee of -the owner of the said motorcycle ond he was dejNJted to work durin9 Ihecourse of his employment by his employer and therefore the above cited judgments may not be applicabte. 10. But for the purpose of the Motor Vdiicles Act only it is to be seen that the deceased has stq)ped into -the shoes of the owner or not nwy be in the capacity of his emptoyae or representact-ive. In the case in hand, it is on admitted fact That the respondent No.l is the owner of the vehicte in question and the deceased was employed under his employment, which it evident from the statement of respondent No.1. Tharefore the judgments of the Hen'bte Supreme Court in •(he mortters of Rajni Devi (supm) and Ningamma (aipro) would be ftilly applieabte. 11. Leamed coun^l for the eypellants further submits -rtiat it. is not in di^)u*e that The deceased hnd gone for the work of respondent hto.l and met wlth an "'-^.-^ owner of the vehicle ance a person camat be bo'tti, a elaimmrt' as alsoo recfpient, the heirs of the cteceased could not have mamtouiwda ekum m terms of Section 163-A of the Act. 7. In the motter of Ningumma & onwther Vs. United India Insunmcc Ccmpany Limited reported in (2009) 13 SCC 710 in Para-SZ the Hon'ble Supreme Court- has held thus:- "22. In a cose whereln the victim died OP where he waa permanaTrty disabted due to an uccident urising out of the aforesaid motor whicie jn that event the liability to make payment of the compensat'fon 1s on the inairance company or the owmer, as the casemay be as pirovKied u^ier Section 163-A. But if it is proved thot thedriver is the owner of the motor vehicle, in thot cose the owner couldnot himself be a recipieint of compensation as the liability to pay the same is on hiro. This proposition is absoluteiy cieur on a reading of Ssci-ion 163-A of~the MVA. Accordingly, the 10901 r^resentnt'ives »fthe deceased whe have stepped into the shoes of the owner of the motor vehiclecould not have cktimed compensdt-ton under Sect-ion 163-A of the MVA." 8. In wew sf ubove settled position of kvH, we are of the opinion thot the claimants, who are legol representotives of the deceased, wrtie stepped into the shoes of owner of the motorcycte In quesMon. could not have ckiimed compensotion under Section 163-A of the Act and as axh tiie Cloima Tnbund has not commrtted any illegality or im(ropriety in dismissing the ctaim appltcotion of the ckiinwnts. 9. At •this stoge ieorned counsel for the appellnnt submits that Ihe deceased had infact not borrowed the vehicte for his wori< but he wasemployee of Ihe owner of the sqid motorcycle and he was depu-ted to work durin9 ihe course of his employment by his employer and therefore the abow <ated judgments may not be af^ilicable. 10. But for the purpose of the Motor Vehictes Act only it is to be seen that the deceased has stepped into the shoes of the owner or not moy be in •the copacity of his emptoyae or representative. In the case in hand, it is an admitted fact that the reqiondent No.l is •t+ie owner of the vehicte in question and the deceased waa employed under his employment, which is evident from the statement of respondent No-l. Therefore the judgments of 1he Hon'ble Supreme Court in The matters of Raini Devi (supra) ouxl Ningamma (supra) would be -hjlly appticabte. 11. Leamed counsel for the oppelkmts further submits that it. is not in dispute that the deceased hdd 9one for the work of respondent No.l tmd met wi-rh en ... ^-^y.&^;.'- i 1 accident, therefore, liberly be gmnted to the oppellants to approach -the Commissioner under •fhe Workmen's Compensation Actto cleum compenscrt-ion ogainst the re^»ondentNo.l. . s l2.It is setl-ted position of law 1+iat in the caaes w/here Ihe ptaint or cpplicatjon isnot maintainnble, it is alwaya open for the applicuit orplahitiff to fite appropriate ppoceedings which is niain-tainatole in law and there is no restriction in this regard. Therefore, we feel thatenda of justioe woukl be served if the qipeltants are gronted liberty to approadt the Commissioner under The Workmen's Compensation Act as we feet thnt l+ieclaitnorrts' diould not be left remeditess. 13. Accordingly, we dianiss the appeal ond affirm •the impugn«laward pasaed by the Claims Tribunal. However, since altegation is that at the time of (acident in question "the deceased was employed as employee of the ownu" of vehicte in question, therefore, liberty is gron'ted to •the Dppelkmtato qiproach the Commissioner under the Workmen's Cwnpensation Aet to ckiim compensatim cgainst the rcsspondent No.l herein i.e. owner ef the motwcycte in question. It is mode clear -that on ctainn application being fited, the CommBsioner under Ihe Wortunen's Compensation Act diall consider the question of deky, if aiy, in the light of Ihe foct ihnt the cktim <yplieation »»asfited befone the Ckiims Tribunat on 22.4.2006, whidi was dismissed by theClnims Tribunal videtiward dated 06.12.2006 and -thereafter the inslant appeal was filed on t.12.2007 along with an opplication for condonation of delay in preferring the appeat, which has been altowed by this Court' and detay in filing -the oppeal hos been condoned. 14.It isalso made clear -rtiat we have not considered the case on nwrits and therefore •the observations made by u®shall not be taken into consideration as a finding and Ihe Commissloner under •the Workmen^ Cempensation shnll decide the claim petition, if filed, on its own merits. 15. Certified copy cus per njles. • • — Sd/- Sd/- I.M.Qiiddusi Judge G. Mmhajuddin Judge Roshan/-