^ ^' IN THE HON'BLEHIGH CQUKr QF CHOHATBSGARH AT.BILASPUR M.A(C)No. .^...y OF 2010 LAPPEAL VALUED AT Rs. 3.70,000/-1 AITEAL UNDER SECTION 173 OF THE MOTOR VEmCLES ACT, 1988. 1^?"-?^.-?%^^?^ ^<^?" \}.^!. '^' i;^?^':~:r;': :J l"-~J -• APPELLANT y (NON-APPUCANT N0.2): United India Insurance Company ,\<£> ,. Liniited, Through Its Branch »hManager, Branch-OfEce, Shanti ~.&.x^f>)'' palace, Second Uoor Chakradhar ?i. ft*"".»,, S1^"-^' A.V<; " Nas'ar Chowk- Raiearh- Dii ^l6£!T"- nAS(S--" .^-v^^.V-e;' Nagar CJhiowk, Raigarli, Distt. Raigarh (C.G.). RESPONDENTS fAPPLICANTNO.11 (APPLICANT N0.2) VERSUS :1. :2. (NON-APPLICANTNO-l) 3:; ^fc oiit.3,'1) Srat. Jaykumari RafhiaW/o- Balkumar, aged about 32 years, R/0- Village Tolge, Block Lailunga, P.8.- Tamnar, DistL- Raigarh (C.G.) ¥adav,agcd-abeu^-SS-yeaFS, iation-house-^nfe. 3 Bodlo Ram Rathia, S/0- Chamru Ram, aged about 55 years, R/o- Village- Tolge, Block - Lailunga, P.S. - Tainnar, Distt.- Raigarh (C.G.), Ramesh Rathia, S/0- Shri Kumar, lal Rafhia, occupation- vehicle owner, R/0- ViUage- Kesharchuan, P.S.-Tamnar, Distt.- Raigarh (C.G.). 10 DB: Hon'ble I. M. QUDDUSI & United India Ins'urance Com.pany Limited Vs. Sm.t. Jaykuin.an Rathia aad others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES •n > JL ^r^j'; earance: Mr. Dashrafh Gupta, counsel for fhe appejlant. None for fhe respondents thoiigh served. , Per I. 1. List is being revised. Case is agam caUed out. No one appears for tlie respondents even when the inatter is talsen 110 todce. However, Mr. Dashrafh Gupta, coiuisel for fhe appeUaiit is present. Therefore, we have proceeded expai-te agaiast the respondents and have heard learaed counsel for fhe appeUant. 2. This appeal has been filed by the Insui'aiice Coriipaay against » fhe impugned award dated 08.04.2010 passed by the Additional Motor Accident Claims Tribunal (F.T.C), Raigai-h (C.G) ia Claim Case No.05/2009 awardiug Rs.3,70,000/-. 3. Brief facts of tlie case as per fhe version of clauaaats are that on 28.05.2009 at about 16.00 hours deceased Bal Kumar Rathia was driving fhe Hero Honda C.D. Delux Motorcycle bearing Regn.No,C.G.13-J/3135 owned by respondent no.l Rainesh Rafhia. Sukauti Bai Rafhia was sitting as piilion rider. On ttie way at about 16.00 hours at a viUage chowk, the said niotor cvcle struck against a raaugo tree, as a result of which deceased Bal Kum.ar Rafhia died on fhe snot. The piUiou rider wr,^-,- -yynmn; •.^'l^^ -•i''fws^&\ /•!se!\ 'Y 1 1 1 ^._jj '^s'^""' ^' ^SssSsS^ • Sukanti Bai also died in the said accident. At fhe time of accident, fhe deceased was aged about 39 years. He was worldng as head-iaasoa and was eaming Rs.3000/- per aanuru. The clamiaats being dependents/legal representatives offhe deceased have filed claiin petition u/'s 163-A ofthe Motor Vehicles Act for the award of total conipeusation of Rs.8,50,000/- oavarious heads. The leamed Claitns Tribunal haviag regard to ttie facts situation and inaterial on record, held fhat the deceased was driving the said iiiotorcycle o^vned by respondent no.3 and mLet wifh accident, as a result of which, he died aud the claiiaaats arc entifled to receive Rs.3,70,000/- froia fhe AppeUant. We have heard learaed counsel for fhe parties and have also gone tlirough ftie records of the Tribunal. A perusal of fhe record shows fhat the uiotorcvcle did not belong to tlie deceased. He borrowed the saiae froin its real o\vner i.e. Rainesli Rafhia, respondent no.3 herein and niet VTifh accident wifhout uivolving auy otlier vehicle. 7. In fhe niatter of Oriental Sajv.i Devi reported in (2008) 5 SCC 736 Hon'ble fhe Supreiue Court has held fhat Section 163-A of fh.e Motor Veliicles Act, 1988 caanot be said to have aay appUcation ia. regard to aQ. accident wherein. fhe owner of the xnotor vehicle ^hiinself is uivolved. It was furfher held that fhe liability under Section 163-A ofthe Act is on ftie owner offhe vehicle siace a person. caunot be botli, a clairtiaiit as also a recipient an-d therefore fhe heirs of fhe deceased could not have luaintauied a claim in tenas of Section 163-A of fhe Act. For fhe said purpose, onlv th.e terms of fhe contract of uisiiraiice could be taken recourse to. 8. Furfher in. the niatter of Ningamina 85 aaother Vs. United Hon'ble fhe Supreine Court foUowing fhe case of Rami Devi (supra) held ia Paras 21 & 22 as yiider : - ^Sh. i/T'o "21. In our consMered opinion, the ratio ofthe decision ia Orien1.al Insurance Co. Ltd. -vs- Raini Devi case is clearlv appUcable to the facts of the present case. In fhe uicsent case, fhe deceased was not ttie owner of the niotorbike in questioa. He borrowed (he said inotorbike froiu its real owner. The deceased caanot be held to be aa em.ployee of the owner of the inotorbike alfhough he was authorized to drive_fhe said vehicle bv its owner and, therefore, he woiild step into the shoes offhe owner ofthe inotorbike. We have already extracted Section 163-A of fhe MVA hereiubefore. A bare perusal of the said provision would inake it expUciUy clear fhat persons Uke the deceased in flie pre;sent case would step io.to fhe shoes of the owner of the vehicle. 22. In a case wherein the victiBa died or where he was permaaenUv disabled due to aa accident arisiug oyt of the aforesaid inotor vehicle ia that eveut the liability to inake payiaent of fhe couipensatioil is on the uisuraace com.pany or ttie owner, as Uae case raay be, as provided under Section 163-A. But if it is proved that tlie driver is the owner of fhe inotor vehicle, ia fhat case fhe o^vner could not himselfbe a recipient of com.pen.sation as fhe HabiiitY to pay fhe same is on hini. This proposition K absolutelv clear ou a readuig of Section 163-A of the MVA, AccordinRly, the legal representatives of fhe deceased who have stepped into the shoes of fhe owuer of the_jnotor vehicle could not liave claimed coiupensation under Section 163-A of the MVA." Admittedlv the deceased was driyuig the inotorcycle which was borrowed from. its real owner naiaely RaBiesh Rafhia, respondent no.3 herem., and in.et wifh an accident wifhout involving aay ofher vehicle. Therefore, the case on hand is squarely covered by fhe decisions of fhe Supreine Court in Oriental Insurance Company Ltd. Vs. Rajni Devi (supra) and Ningctmma & another Vs. United India Insurance Company Limited (supra). Hence, it would be sufficieat to hold that fhe deceased would step into the shoes of fhe owner of fhe vehicle and the provisions of section 163-A of the Act would not be auolicable ia fhe uistant case and as such the claira oetition was not raaiataiuable. In view of ftie above discussion, we are offhe ophiion fhat fhe claiinaats, who ai~e legal representatives of fhe deceased, could not have r-1nimrr1 conipensation under Section 163-A offhe Act, Y-l Therefore, fh.e appeal succeeds aad fhe unpugned award dated 08.04.2010 passed by the Claiias Tribuaal in Claim. Case No.05/2009 is set aside. Consequently, the claim. petition also stands dismissed, as not Hiauitainable. However, this wiU not debar the claanants to file a laauitauiable claim. petition under the relevant provisions oflaw for the tiine beiug in force. The anxount which is ui deposit withdrawii by the appeUaat. shall be aUowed to be Jn^fh.e_result fhe appeal is allowed. No order as to costs. Rao Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge