\., •• / YJ ii:^ 5 i^.^.a~}33^./C.M ^^M^i^W^}^ ^w,.:...q^L.L^ BEFORE THE HON7BLE HIGH COURTOF CHHATTISGARH AT BILASPUR MISC. APPEAL rCI N0. f 10°) / 2010 BenA /\ •w^' APPEALUNDER SECTION 173 OF THE MOTOR VEHICLE ACT.1988. i ^L^.^ APPELLANT € Rameshwar Sahu S/o Late Dherharam Sahu, Agedabout58 years, R/o Basin, District Raipur (C.G.) other address- New Laxmi Nagar, Mova, District Raipur (C.G.). •" VERSUS XESPONDENTS >? J-. Suresh Sachdev S/o Govind Sachdev, R/o Fingeshwar Road, Police Station Rajim, District Raipur (C.G.). (Registered Owner of Vehicle Hero Honda Motorcycle bearingRegd.No. C.G. 04/CQ 5447) ^Insurer ^' 2. 4 Reliance General Insurance Company Limited, through Manager/Competent Authority, Ravi Bhavari, Jaistambha Chowk, Raipur, District Raipyr (C.G.). (Insurer of Vehicle Hero Honda Motorcycle bearing Regd. No. C.G. 04/CQ 5447) HIGH COURT OF CHHATTI8GARH. BILASPOR DB: Hon*ble I. M. QUDDUSI fis Hon*ble G. MINHAJUDDIW. JJ M. A(C). No.1109 /20t0 APPBLLANT: RBSPONDBNTSi RaEaeshwar Sahu Vs. Suresh Sachdev and aaofher MI8C. APPEAL UNDBR 8BCTION 173 OF 'NIB MOTOR VBHICLESACT. 1988 Appemrance: Mr. Satyendra Sahu, coiuisel fbr fhe appellaat, None for respondent no. 1. Mr, Saurabh Sharma^ counsel for respondent No.2. Per I.M. OUDDUSI. J. ORAL ORDBR (27.06.2011) !• This appeal has been fited by fhe Claimant ^aiast the impugaed awaxd dated 04.08.2010 passed by the IX Additional Motor Accident Claims Tribunal (FTC), Raipur (C.G) in Claim Case No. 13/2010 dismissing the claim offhe appeflaat. 2. Brief facte of fhe case as per fhe version of claimaiit are that on 04.07,2007 clafcmant/mjured was goiag towaids his viUage Basia by ridmg the motorcycle bearing Rega.No. C.G. 04/C.Q/5447 belonged to respondent no.l. On fhe way fhe said inotorcycle became unbalanced due to oil fell down on fhe mid road. At fhat time, aa unknown motorcycle dashed the motorcycle of fhe claimant aad he feU down, as a result ofwhich, he sustauied iajuries on his head aad face aad lost ^ "^!^%.- ^ fhe sight in his right eye. His 19 teefh werc broken. He was brought to Medical CoUege Hospital, Raipur aad fhen Heritage Hospital, Devendra Nagar where he remaiaed for about IVa iiionfhs, The claixnant becaiae penxianently disabled due to fhe iajuries sustained by him m fhe said accident aad stiU he is undergoing treatment He filed CIauai Petition u/s 163-A ofthe Motor Vehicles Act for fhe awaid of a total compensation ofRs.17,30,000/- on vadous heads. 3. We have heard leamed counsel for the parties and have also gone fhrough fhe records ofthe Tribunal, 4. The leamed Claims Tribunal has foUowed the decision ofthe Supreme Court ia Nlngamnw. eind. cm.other -vs- United Jndia Jnsurance Co. Irtd., 3009 AJK SCIIT 49J6 and hfld fhat since the deceased borrowed fhe motorbike firom its real owner, he stepped iato fhe shoes of the owner aad fherefore, fhe claim petition u/s 163-A is not mauxtamable. It appears fhat fhe msuraiice policy was not produced before the claims Tribunal aad the Tribunal has faUed to decide the question whether fhe contract of fhe insuraace was to be govemed or not. In this regard, paxa 13 of Ningamnwi's Case (supra) is liable to be penised which reads as under: a13. In fhe Ught of fhe aforesaid subnitesions, fhe question that falls for our consideration is whether fhe legal rcpresentatives of a person, who was driviag a motor vehicle, affcer borrowmg it froiSL fhe real owner meets wifh an accident without iavolvmg aay other vehicle, would be entitied to compensation uikder Section 163-A of MVA or under aay ofher provision(s) of law aad also whether the iasurer who issued the msuraiice policy would be bound to mdemnify fhe ^ ^ deceased or his legal representative ? Before dweltuig further, it would be useful to discuss fhe relevant Paras ofSections 163-A and 166 offhe MVA applicable ia the prcsent case, al63-A. Spedal provisions as to payment of compensation on structuredformula fcasfe.- (1) Notwifhstaading aiiytfaiag contaiiied in fhis Act or ia. any other law for the time bemg ia foaxse or instnuaent haviag fhe fbrce of law, fhe owner of the motor vehicle of fhe authorized iasiirer shall be liable to pay m fhe case of deafh or pennanent (iteablement due to eipcident adsiag out of fhe use of niotor vehicte, coDipensation^ as iadicated ia fhe Seco&d ScMediile, to the legal heirs or the victim, as fhe case may be. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX (2) In any claim for compensation under sub- section(l), fhe claiaiaiit shaU not be required to plead or estabUsh fhat the death or pemiaaaent disablemient ia respect ofwhich fhe claun has been made was due to aiiy wrongful act or neglect or defeult of the owaer of the vehicle or vehicles conceraed or of any ofher person, (3) The Central Goveniment may, keepiag ia view the cost of Uvmg by noti&cation m fhe Of&cial Gazette» from tmie to tiiae amend fhe Second Schedule." 166. Applioation for conipensation—{A) An appUcation for coinpensation adsing out ofan accident of fhe nature specified ia sub-section (1) of Section 165 niay be inade— (a) by fhe person who has sustained fhe injury; or (b) by fhe owner ofthe proper; or (c) where deafh has resulted fix>m the accident, by all or any of the legal representatives of fhe deceased ; or 5. ^ (d) by aay agent duly authorized by fhe person iajured or all or aay offhe legal representatives ofthe deceased, as the case may be : XXX XXX XXX XXX XX In fhe said case, Honl3le fhe Supreme Court held m Para 14 that Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social secxuily scheme. It is needless to say fhat fhe said provision is a code by itself. The said provision has been itiserted to provide for a new predetermicied structured ft)rmula far paymeat of coiiipensation to ipad accident victims on fhe basis of age/iacome of the deceased or fhe person suffermg permaaent disableiaent. In view of fhe language used ia fhe said Sectbn, there coiild be no maoiier of doubt fhat fhe said provision has aa overridiag effect as it contams a non obstante clause ia terms whereof fhe owner of the niotor vehicle or the aufhorized msurcr is Uable to pay compeusation m fhe case ofdeafli or j^raiaaent disablement due to accident arisiag out of fhe use of motor vehicle^ as iadicated ia fhe Second Schediile^ to fhe legal heirs or fhe victim, as fhe case may be. In Oriented Insuresnce Campdny Limited -«s- Keifni Devt cmd others (2008) S SCC 736 it has been held by Hon'ble the Supreme Coiut ia paras 11 & 12 fhat fhe liabiUty u/s 163-A of fhe Act is on fhe owner of the Vehicle as a person caanot be bofh, a claimaxit as also a recipieat. The heirs of deceased coiild not have maintaiaed a claioi ia terms of Section 163-A of ftie Act. For the said purpose onfy the terms of fhe Contract of Insurance could be taken recourse N -^ 3^ to. Accordiag to fhe tenns of fhe contract of iasurance, fhe liabiUly of Insurance Compaay was confiined to Rs.1,00,000/- (Rupees one lakh only). It was liable to fhe said exteat aad not any sum exceediiig fhe said amount. 6. If we apply fhe above ratio fixed by Hon^le fhe Supreme Court to fhe present case, a perusal of fhe i&suraace poUcy is necessary aad it has to be decided whether the claimnnt is entifled to get any coinpensation under fhe terms of fhe Contract of fhe Insuraace PoUcy as it has been held that the borrower stepped iato the shoes offfae owner, A copy offhe iasuraace poUcy filed m fhis appeal would show that PA cover for fhe owner-driver is luuited to Rs. Rs.1,00,000/-, for that fhe Insuraace Company has received the premium of Rs.50/-. Thercfore, fhe matter requires reconsideration at fhe end offhe Tribunal for decision afresh. 7o In view of the above, we allow fhis appeal ia part; 8et aside the impugaed award dated 04.08,2010 and remit fhe matter back to the Tribunal for decision afesh ia the U^ht of fhe observations niade hereia above, 8. Needless to niention fhat fhe parties shall be allowed to amend fhe pleadiags, adduce lurfher evidence, JSle further documents or get fhe documents venfied etc., and thereafter the Tribunal shall make fhe award afresh. The parties shaU appear beforc the Tribunal on 26th July, 2011. The recoxxis of the Tribunal shatl be sent back forthwifh. No oxder as to costs. Rao Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge