Jiteisl^^ RQ^£ ?IP!i &^^& ®(THEHIGH COURT OF CHHATTISGARH AT BILASPUR M.A. ^/2009 APPELLANTS. APPLICANT ^ ^ (1) SmtHombai AgeAbout42 Years W/o Late Bhushan Lal Sahu ^' ^^.-•n-:^ (2) Ku. Pushpa Age About 19 Years ^ D/o Late Bhushan Lal Sahu ,.-p3^tT.<t&' ,».*^»f^e>>>'" ,.v.-'>" (3) Thaneshwer aged about ISyears S/o Late Bhushan Lal Sahu ^ (4) Ku.Lakeshwari Sahu aged about 14 years D/o Late Bhushan Lal ^ Sahu (5) Ku. Vamini Age About 11 Years D/o Late Bhushan Lal Sahu Both No. 4 and 5 are Minor Through Natural Guardian Mother Smt. Hombai Age About 42 Years W/o Late Bhushan Lal Sahu (6) Smt. Mahabati Age about 67 Years W/o Late Chowaram Sahu All ofthem are by cast Teli R/0 village and Post Nahanda, Tah. -Dondi Lohara District- Durg(C.G.) VERSUS RESPONDENT. NON-APPLICANT g^ (1) Kripal Ji Patel Age About ^SYears S/o Shri Hrideyram .-^"^^y"v Patel, R/o Village and Post Nahanda Tah. -Dondi Lohara District- Durg(C.G.) (Registered owner ofVehicle Hero Honda C.D.100 SS No. CG-07 J 2175 ) (2) National Insurance Co. Itd. Through - Branch Manager National Insurance Co. Itd Branch Office - Kamthi Line Rajnandgaon Distt.- Rajnandgaon ( C.G.) (Insurance Co. ofVehicle Hero Honda C.D.100 SS No. CG-07 J 2175) ^" eal under Section 173 Ofthe Motor Vehicle Act 1988 HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (C) No. 108 of 2009 Appellants Smt. Hombai & others Versus Respondents Kripal Ji Patel & another APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi 8s Hon'ble Shri G. Minhajuddin, JJ Shri Rakesh Thakur, Advocate A)r the appellants. Ms Ranjana Jaiswal, Advocate for the respondent No, 1. Shri Goutam Khetrapal, Advocate fg)r the respondent No.2. ORDER (Oral) ( Passed on this 16th day ofJune, 2011 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the claimants against the impugned award dated 24.8.2008, paased by the Additional Motor Accident Claims Tribunal (FTC), Balod, District - Durg in Claim Case No. 22/2008, dismissing the claim petition. 2. We have heard learned counsel appearing for the parties and perused the lower Court record as well as the findings given in the impugned award. 3. The brief facts, in nutshell, are that the legal heirs of the deceased Bhushan Lal filed a claim case under Section 163-A of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 11,45,OOO/- under various heads on the ground that on 22.10.2007 at about 4.00 p.m, when the deceased was going to Deori on the Hero Honda motorcycle, bearing registration No. C.G. 07-J/2175, on the Deori - Nahanda road the vehicle got slipped, thereby Bhushan Lal fell down from the motorcycle and received •i—;:.——- "^ grievous injuries. Subsequently, during the treatment he died in ^ f , the hospital. The vehicle was owned by the respondent No.l and it was insured with the respondent No.2. Indisputably, the deceased had borrowed the motorcycle from the respondent No.l/owner. Neither the claimants have filed copy of the driving licence nor given any particulars to show that the deceased was having a valid and effective driving licence to drive the motorcycle. Learned Tribunal, having regard to the facts and evidence passed the impugned award, dismissing the claim' petition. It is well settled law that the person who borrowed the vehicle (motorcycle) from the owner steps into the shoes of the owner of the vehicle and thus cannot claim compensation from himself/owner, In the case of Oriental Insurance Conipany Limited Vs. Rajni Devi and others (2008) 5 SCC 736 the Apex Court has held that Section 163-A ofthe MotorVehicles Act, 1988 cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. In the instant case, the deceased was not the owner of the motorcycle in question. He borrowed the motorcycle from its real owner i.e. the respondent No.l. Therefore, he can be neither a third party nor can be said to be the employee of the owner of the motorcycle. He was only authorized to use/drive the motorcycle by its owner and therefore he would step into the shoes of the owner of the motorcycle. In the case on hand the deceased was driving the two wheeler, owned by the respondent No.l, and the claimants had filed the I ......y,*tn'«Kala^^w>puUi-u^ n8?ww>' 7!S^rWS^v^^ ., ^^ -•y .. .:M^.;.\ ^' ^. lf ^^" // l:.,"'t -'^- 8. claim petition under Section 163-A of the Motor Vehicles Act, 1988, which reads as under : "163 A. Special provisions as to payment of compensation on structured formula basis. - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.— For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. A bare perusal of the provisions of Section 163 A of the Act, 1988 would make it explicitly clear that the person, like the deceased in the present case, would step into the shoes of the owner of the vehicle. In the case of Nigamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710, following the decision in Oriental Insurance Company Limited Vs. Rajni Devi and others (supra), the Hon'ble Apex Court has held as under: "22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make .^i ,r •i^ . .<»»•l^fjlt *»\»opai a, ,,S^,,HS.3e.rS3^I?35^%^^ - -J..^—r--—^^-—»-~-" ..-.--.-..-.••--.•—•»=-^—=r:--—^- -;-i; ". '• • "i • - . • • • •• • • • — —--• '^ ^' payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163- A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA. 23. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A ofthe MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.?? 9. A bare perusal of Section 163-A of the Act, 1988 would 8how that the liability to pay the compensation under Section 163-A is either on the owner or the authorized insurer. In the instant case, according to the insurance policy the insured has assured the sum of Rs. 1,00,000/- only to the owner-cum-driver (Compulsory PA to Owner Cum Driver), which is binding upon the respondent No.2 Insurance Company since the deceased was representative of the owner and was driving the vehicle and stepped into the shoes of the owner, therefore, for this purpose it will be treated as representation of the owner of the vehicle i.e. the owner of the vehicle. In the case of Rajni Devi (supra) it has been held by the Hon'ble Supreme Court that the liability under Section 163-A of the Act is only on the owner since person cannot be both, a claimant as also a recipient. However, for the said purpose only the terms of the contract of the insurance could be taken recourse ^s's^'s^-rv^vy^ ^, ^^. ^ '<1 ~^'•.:•• -Tr-T'" Thakur / 10. to. According to the terms of the contract of insurance, the liability of the Insurance Company was confmed to only Rs. 1,00,000/-. However, in the instant case no driving licence was produced by the claimants and even no intimation was given that the deceased was having a valid and effective driving licence to drive the motorcycle. Therefore, no amount can be awarded to the claimants. In the result, the appeal is dismissed. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ,./ • • •»»*W WV-TTWUI --ysss-^—.g.E?^^ i.^