-3- c ^.^' BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR ^fjSJs ?|f%r!s M.A.(C) No.\^%12008 y<- APPELLANT DEFENDANT N0.2 s^- .^-"^ ^^'^y 9^tt d^/ ^.^Y :1. IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) VERSUS ^ RESPONDENTN0.1 CLAIMANT N0. 1 RESPONDENT N0.2 CAIMANT N0. 2 1. Smt. Geeta Bai Widow of late Ajay Kumar, Aged about 25years. 2. Smt. Savitri Bai, W/o late Premchand, Aged about 45 years RESPONDENT N0.3 CLAIMANTN0.3 3. Ku. Babita alias Anju , D/o Late Premchand , Agedabout 16 years RESPONDENT N0.4 CLAIMANT N0. 4 4. Shravan Kumar, S/o Late Premchand, Aged about 14 years Respondent no. 3 and 4 are minor, represented through guardian mother respondent no.2 All resident of Village Hafa, District - Bilaspur(C.G..), RESPONDENTN0.5 DEFFENDENT N0.1 Bodhram Bharat, Aged about 40 years,S/0 Sadashiv Bharat, Residentof- Sakri, Daldalia Para Ward No1, Bilaspur, (C.G.) (Ve^icle Owner) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTORVEHICLE ACT. 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT M.A. (0.1627 of 2008 IFFCO TOKIO GENERAL INSURANCE COMPANYLIMITED Versus ^ RESPONDENTS Smt. Geeta Bai & Others h APPEAL UNDER SECTtON 173 OF THE MOTOR VEHICLES ACT SB: Hon'bte Shri Justice N. K. Agarwal. Present : Shri YS Thakur, Advocate for the appellant. None for respondents though served ffirough paper publication. ORALORDER (Passed on 18.11.2010) Heard. The instant appeal has been preferred by the appellaN against the order dated 03.07.2008, passed by the Vlth Additional Motor Accident Claims Tribunal, Bilaspur (for short the Tribunal')in claim case No. 89/06, awarding compensation of Rs. 3,00,000/- in favour of the claimants and as agains* the appellant/insurance company and the owner of vehicte jointly and severally. Brtef facts of the case according to the appeNant are that, on 14.05.2006, Ajay Kumar (since deceased) while coming towards Bilaspur from Nagradih atong wtth his frtend Vlnod Kumar on the motorcycle bearing registration No. CG-10-EA- 8694, lost his balance and colHded with divider as a result of which Ajay Kumar succumbed to the injuries sustained in the sakl accident. pue sai^iod p siueutajinbsj ©i|isaqjjosep ^i, uqioss 's>isu Ayed pjjq) ^sujBSe souejnsuj p Aoi|od e 9AB4 01 aoe|d oiiqnd U( 8|0|MaA JO^OUI B p jasn 9i() jo^ ^esseoau apeuu SBM tj 'pv 9MI P 9^1. uoftoes Ag 's>|Stj A)jed PJJMI isujeSe e|o|M9A jopuu 9M» 4^ Sjeep 8861.1PV sapiyaA J0»ov\| 941 p ix Jaideyo •jBunqui ai|) p spjoosj 9i|i pesmad OS|B pue |ue||adde eqi jo^ fiujjBedde (esunoo paujesj 94^ pjesy eAey | •»ue||8ddeQ\^ »suie68uouBsueduuoo se -/OOO'OO'C •sy SuipjeMB PJBMB aq^ psssed A|6uojM sey leunqui PQUJBQI 9l|i pUB M8| p 8^9 eyt uj eiqeuieiuiBUj iou SBM i|9s% uoi^ed Ujie|0 QMI 'A^ed pjj4t B Bujeq pu 'paseeoap aqi 'sjo^ejayi •aioAojo^ouj Bu|Aj4p SBM paseeoap 941 p^ sift p v€91.uoipes japun p98B909p aft jp 99ABie|uasadai |e6a| aift ^| pauaiaid useq seit u<ep a41^ puaiuoo pjnoM luejsckte sift x^ Buueadde (ssunoo p9Luesn 'luauuABd sij Ift ucNiBaicfcte^ si|Bp eift ijuo^ uriuuejsd luscuad 6 @ )saja|ui iffl^ 6uo|B eioiqaA eiftp jauMD sift uxi# ^ JSAOOQJ oiuaiftptB s|Lieunep eiftq iMnouie siftA^^q pQp8i|pse^4BBdiuoo90UBri9U! aift'jaAswoj-i's^UBiuaspaift o| uojtesuadtyoo ^^d oiAisqes s| luo^4iedux)o souBjnsui sift BUffBiauQa® I, 'ON lUBQ|dde<iou^ -ON yjapuodsai eift isuieSe se pue SILIBUUBP aft pjnoABtu -^OCD'OO'GP u*ns e pepiewas 'saiijed eiftAq apeui suojssjUxyTS pue p90B|d pBusiieui 'pei eouapiAa p Auiinus ssop e uo 'ieunciii oiu. •»u9p!ooepies 841 uj pssesosp i0 Mieep aqi jo^ -/000'96'Sl "sy P suni sqt o^ uojtesueduioo Sujuuieio 'pv 89|Oj49A wym aM» V-ggi. uoipes JSpun leunqjji 941 ajojeq uoj»Boi|dde ue pajjepjd stueiujBio 841 »b 's •fr ,,^^&su-<^. ,/' '^J.^. 8. limits of liability of such statutory poliejes. Sectton 149 mandates the insurers to satisfy judgment and awarcte agalnst persons insured in respect of third party riste. Sectton 1^-A provides special provision as to payment of compensatton on structured formula basis. Section 165 empowere the State Govemment to constitute one or more Motor Accident Cteims Tribunate to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons aristng out of the use of the motor vehides or damages to any property of a third party so arislng or both. A brief analysis of the above provislons would reveal that the claims Tribunals have been constttuted for the purpose of adjudfoating upon the ctaims for compensation in respecA of accident involving the death of or bodlly injury to a third party arising out of the use of the motor vehicle. Hon'ble the Supreme Court in case of Orfeirta/ Insiwaoc® Company Ltd. vs. Rajnl Devf; reported in (2008) C SCC 738 has held that Section 163-A of the Motor Vehictes Act 1988 cannot be said to have any application in regard t@ an accident wherein the owner of the motor vehicle hfrnself is involved. It was further held that the liabitity under Sectlon 1©3-Aof the Act is only on the owner of the vehtele since a person @annot be both, a claimant as also a recipient, the heirs of the deceased could not have maintained a daim in terms of Section 163-A of theAct. 9. 10. 11. 12. Undisputedly, the deceased was not the owner of the motorcycte in question. The deceased cann<rt be hetel to be an employee of the owner of the motorcyde although he was authorized' to drive the said vehiole by Ns real ewner and, therefore, he would step into the shoes @f the owner of the motorcycle. In a case whereln the vicUm died or where he was permanently disabled due to the accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the Insurance Company or the owner, as the case may be as provided under Section 163-A of the Ac*. But if it is proved that the driver is the owner of the motor vehicte, in that case the owner couM not himself be a recipient of compensation as the liabil'rty to pay the same on him a®held by Hon'ble the Supreme Court in case of WvigsHnma wid another vs. Untted Indla liwurance Company UteMwf. Accordingly, the claimants who are the legal representatives of the deceased have stepped into shoes of the owner of the motorcycle could not have claimed compensatton under Section 163-A of the Act and the leamed Tribynat went wrong in awarding compensatton to them. At this stage, 1 have perused the poltey of insuraoce flted by the appellant/lnsurance Company. Under the poltey, the appetlarrt had undertaken the risk of owner<lriver of the vehicle to the extent of Rs.1,00,OOQ/- by taking a premium of Rs.50/- therefor. 12009(13)SCC-710 13. Although Section 147 of the Act does not require an Insuranoe Company to assume risk for the death of or bodily injury to the owner of the vehtete but the appellant/lnsurance Company has assumed the risk of owner by entering into the special contract with the owner of the vehtele by charging addftional premium of Rs.50/- therefor and, therefore, the appellanVlnsuranee Company certainly owe a liabillty towards legal representatives of the deceased owner to the extent of Rs.1,00.000/-. 1 held accordingly. 14. For the foregoing, the appeal is allowed In part. The award is modified to the extent that the appellant/lnsurance Company is llable for payment of compensation to the claimants only to the extent of Rs.1,00,000/-. The above amount of compensation shall carry interest @ 9% per annum from the date of application. The appellanVlnsurance Company is granted three months' time for payment of above compensation. Sd/- N. K. Agarwal Judge Sahu