"!tlsBS»i«.. 1N THE H1GH COURT OF JUDICATURE AT BILASPUR: C.G. M.A.No.?;ai Of 2005 MISCELLANEOUS APPEAL UNDER SECTION 173, MOTOR VEHICLES ACT, 1988 Appellants (Non applicants 2) Respondents; ^v^ M^¥' ^^v yy^v /^ Jf ^^J ^'JJ c^- 1) United India Insurance Co.Ltd., Through DivisionalOffice,Krishna Complex, Kutchery Chouk, Raipur (C.G.) Vs 1,) Vijay Kumar Barmedha S/o Vedji Bhai Barmedha, & R/o through Ajanta Paper & Board Mill, Durga College Compelx Road, Raipur, Tahsil & District Raipur (C.G.) (Non-applicant 1) 2)- K.Saraswati aged 32 years, Wd./o K.Subrammaniam @ G.Subrammaniam, 3) Ku. K.Vaishnavi, aged 2 years, / miinor D/o K.Subrammaniam @ G.Subrammaniam, 4) K.Chaitanya Abhay, aged 8 months, , minor, D/o K.Subrammaniam @ G.Subrammaniam, Nos. 3 & 4 through Wali Mother Smt.K.Saraswati, All K/o village Abhanpur Basti, Post Evam Thana Abhanpur, Tahsil & District Raipur (C.G.) (Nos. 2 to 4 are applicants) Claim in appeal for setting aside the award, valuedatRs.41,33,666/- -.- Court Fee affixed at Rs.15/- (Note: 'Receipt' regarding deposition of Rs.2^00/- is being filed herewith) ^- Being aggrieved by award dated 26.4.2005, passed by Viiith Additional Motor Accident Claims Tribunal, Raipur in Claim Case No.14/2005, the appellant prefers this appeal on the following facts and grounds: '•>'V!WWSSr r ^" •;^^ ffi (.J^l rtw":s& HB W !M »SSi' LSC^APPEAL_No, 1164 OF 2< Unjted india Snsurance Co. LtcS. Vijay Kumar Barmedha and others. APPEAL'WS 173 OF THE MOTOR VEHiCLE ACT^ISSS & Hon'bte Shri N.K. Asarwal.^y.) Present : Shri Sanjay S. Agrawai, counssi for ths appeilanl None ror the respondents. ith appeal has been preferred by the against the impugned award dated Eighth Additional Motor AcGident Ciairns 'the Tribunai') In claim case No.14/2005. on 21-07-2003, K. The instant appeii'antfinsurance 26-04-2005 passed Tribunal, Raipur (for 2. BrieT facts of the case are Subramanyam @ G. Subramanyam (since deceased) was gblng from Raipur to Dhamtan by drivsng motorcyele (Hero Honda Splender) bearing reglstration Mo. C.G. 04/CB—0341, owned by non-appBcant No.1, and insured by jnsurance Company/appejlant herein. On the way, the said motorcycie turned turt!e as a resuit of whsch he sustained grievous injuries pursuant So the said accident. Thereafter, he was admitted to hospitai for treatment where he died on 3. The claimants, widow and-.-minor chiidren of the deceased, ireferred an appilcation before.the Zribunal concerned, under Section 1S3-A of the Motor Vehicies Act (for short-''the Act'), claiming compensation to the. tune of Rs. 17,50,000/- for the death of the deceased in the said accident. 4. Learned Tribunai on a ciose scrutiny of the evidence, pfaced on record and submissions mad®by the parties, awardsd ^ s^ fi^vs [VKW 'a K'^ i' sum of Rs.4,33,666/- as compensatlon sgainst the non-appllcants aiong wfth interest @ 4% per annum from the date of the appiication ti!! its payment. 5. Learned counsel appearing for the appeliant would contend that the claim has been preferred by the legal representatives of the deceased under Section183-A of the Act. The deceased was driving motorcycle which was borrowed from its real ov/ner for going from Raipur to Dhamtari. He not belng a'third party, the claim petition itseff was not maintainable in the eye of law and fhe leamed Tribunai has wrongly passed the award awarding Rs.4,33,666/- as compensation agasnst the appelEant. 6. We have heard the leamed counsel for the appeflant and also perused the records of the Tribunal. 7. Chapter X! of the Motor Vehictes Act, 1988 deats with the motor vehlcle against ftird party risks. By Section 145 of the Act, it was made necessary for the user of a motor vehicte in pubiic place to have a policy of insurance against third party risks. Section 147 describes the requirements of policies and Simits of liabiiity of such sfatutory policies. Section 149 mandates the insurers to satisfy judgment and awards against persons insured in respect of third party risks. Section 163-A provides specia) provision as to payment of compensation on structured formula basis. Sectjon 165 empowers the State Government to constitute one or more Motor Accident Claims Tribunais to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of ihe use of the motor vehicles or damages to any property of a third party so arising or both. A brief analysis of the above provisions v/ou!d revea! that the claims Tribunals have been constituted for the purpose of adjudicating upon the claims for compensation in respect of accident invoh/ing the death of or bodiiy injuryto a third party arising out of the use of the moSor vehi6Te. 8. Hon'ble the Supreme Court in case^.of On'ental Ihsurance Company LSd. ys. Rajni Devl; reported in (2008) 6 SCC 73S has hsid that Section 163-A ofthe Motor Vehicies Act 1988 cannot be said to have any appiication in regard to an accident wherein the owner of the motor vehicle himseif is invoh/ed. !t was further held that the liabiiity under Section 163-A of the Act Is oniy on the owner of the I T vehicie since a person cannot be both, a claimant as aiso a recipient, the heirs of the deceased couid not have maintained a clasm in terms of Section 163-A of th®Act. Undisputedly, the deceased was not the owner of the motorcycie in question. He borrowed the said motorcycie from its rsa! owner. The deceased cannbt be heid to be an employee of the owner of the motorcycie aEthough he was authorized to drive the said vehicls by its owner and, therefore, he would step into the shoes of the owner of the motorcycle. 10. !n a case wherein the victim died or where he was permanently disabled due to the accident arising out of ths aforesaid motor vehicle in that event the Siability to make payment of the compensation is on the insurance Cornpany or the owner, as the case may be as provided under Sectson 163-A of the Act. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himseif be a recipisnt of compensation as the liabi!ity to pay the same on him as held by Hon'bte the Supreme Court in case of Ningamma and snothervs. United Indi'a Snsurance Company Limited; reported in 711 Act to 11. Accordingiy, the claimants who are the legal representath/es of the deceased have stepped into shoes of the ownsr of the couid not have daimed compensation under Section 163-A snd the iearned Tribunat went wrong in awarding compensati them. 12. At this stage, we have perused the policy of insurance filed by the appeliant/insurance Company. Under the policy, the appeliant had undertaken the risk of owner-driver of the vehicte to the extent of Rs.1,00,000/- bytaking a premium ofRs.50/- therefor. 13. Aithough Section 147 of the Act does not require an Insurance Company to assume risk for the'death of or bodily injury to the owner of the vehtele but the appellant/lnsurance Company has assumed the risk of owner by entering into the specia! contract wlth the owner of the vehicte by charging additional premium of Rs.50/- therefor and, therefore, the appeiIanVlnsurance Company csrteinly owe a iiabilify towards iegai representatives of the deceased owner to the extent of Rs.1,00,000/-. We held accordingly. BNfl 14. For the foregoing, the appeal i's altowed in part. The award is modified to the extent that the appellant/lnsurancs Company is liable for payment of compensation to the claimants to the extent of Rs.1,00,000/-. The above amount of compensation shali carry interest 6% per annum from the date of apptication. The •» appeiiant/lnsurance Company is granted three months' time for payment of above compsnsation. _ __ _ s3/- ! 1M. Quddusi sdl~ Judge N.K.Agrawal T. a Kir ,,(1«»!' lil l"'ti !"'tfc