IN THE HIGH COURT OF CMHATnSGARH AT BILASPUR fC.G.t M. A. fCyNO. 'M5-- OF 20C^ APPELLANTS CLAIMANTS 1. ».in. c.'c^.'-nte'! n'i! s RESPONDENTS ^ Smt. Uttara Sharma Widow of Late Shri Rakesh Sharma, aged about 30 years, D/o Late Shri Preetram Sharma; Minor Prashant Sharma Son of Late Shri Rakesh Sharma, aged about 3 years; Minor through his natural guardian Mother Smt. Uttara Sharma Widow of Late Shri Rakesh Sharma; Both are residents of Teachers Colony Dha'mdha, Police Station and Tahsil Dhamdha, Distrirt Durg (C.G.). residing at Rikhi Sharma D/o Late Shri Preetram Sharma, Near State Bank of India, Mahabeer Ward Post Bhathapara, District Raipur (C.G.). VERSUS Smt. Sarla Tiwari Widow of Late ^int\n-(Tr.(\ ~>r Shri Balla Prasad Shara, Resident of Teachers Colony Dhamdha, Police Station and Tahsil Dhamdha, District Durg (C.G.). (Owner of Motorcyde TVS Star N0. C.G.-07/L.B./2961). av-feg ^ The Oriental Insurance Company Limited, Through: The Divisional Manager, The Oriehtal Insurance Company Limited Madina Manzil Kachahari Chowl<; R,aipur (C.G.),a^ ^ (^nswet-ef Mini Dus No. Gv6^±£i/A- ^ 4W?^. fT-^t,^vL-e-n. &< v<'\5^5:T-~^ty' -^^^fc-^- -V-. ^ - f^^ MEMO OF APPEAL UNDER SECTION 17-3 O'F THE MOTOR VEHICLE ACT,1988 6}, c y :'r HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.C. No. 45/2008 APPELLANTS Smt. Uttara Sharma and another Versus RESPONDENTS Smt. Sarla Tiwari and another DB:- HON'BLE SHRI I.M. OUDDUSI & HON'BLE SHRI N.K. AGARWAL, JJ ^r PRESENT:- Shri Ashok Soni, Advocate for the appellants. Shri Sudhir Agrawal, Advocate, for the respondent No. 2 ORAL ORDER (5-5-2001) Per I.M. Quddusi, J, This appeal has been preferred agaii-ist award dated 30-3- 2007 passed by the Additional Motor Accident Claims Tribunal, Bhatapara in claim case No. 16/2006 dismissing the claim petition. Facts of the case in brief are that on 14-2-2006, deceased Rakesh Sharma along with his friend was returning from Pathariya on motorcycle bearing registration No. CG-07- LB/2961. Near Rajput STD, Pathariya Chowk at about .10.30 p.m. front tire of their motorcycle got burst, at the same time, another raotorcycle dashed their motorcycle as a result of which they fell down and sustained grievous injuries. When deceased Rakesh Sharma was taken to District Hospital, Durg, he died on way. Claimants being widow and son of the deceased filed claim petition undf Section 163-A of the Motor Vehicles Act, 1988 (for short, 'the Act') claiming Rs. 7,00,000/- as compensation for the death of the deceased. The owner of the motorcycle was respondent No. 1 and the deceased borrowed the "r.;:;,'. - l":c- ^ •:: :. :: :.' . motprcycle from the respondent No. 1. ^^^^' 1 j JJ "y ftt.s.eea*'" Learned Tribunal, having regard to the facts and evidence dismissed the claira 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 Company Limited Vs. Rajni Devi and others (2008) 5 ,SCC 736 the Apex Court has held that Section 163-A of the Motor Vehicles 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, fhe deceased was not the owner of the motorcycle in questipn. He borrowed the motorcycle from ^;,.,) - .;;;. .:.. ..:.,.. , . its real owner i.e. his mother. 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 his mother, and the claimants had filed the claim petition under Section 163-A of the Motor Vehicles Act, 1988, which reads as under:.1 "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 oftlaw, 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 establi^h that the death or permanent disablement in respect of which the claim has been rhade 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 Govemment may, keeping in view the cost of living by notiflcation in the Official s.". ! .,.-; Gazette, froni tiine 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 irito the shoes of the owner of the vehicle. In the case of Nigainma and another Vs. United India Insurance Conipany Limited (2009) 13 SCC 710, following the decision in Oriental Insurance Company Limited Vs. Rajni Devi and others' (supra), the Hon'ble'Apex'Gourt Uas 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 C1.',;-^ .11 !.;;, ..; .^••;iL i'iiS.;', \Vi^.il(; n'rr' il.i' i: ! 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. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be •'.-,:-,•<;,-: ;,! i.r' •'-','r.!f Anrx (,...,''^.•.- h-';.i . 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. \: ^'•:~':-~-'., ..^ 'N. ••'&s-^^^^- 4 Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner pf the m.0tor 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 of the 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 ofthe present case. 7. In view ofrabove settled legal.'position, learned Tribunal has not committed any error in dismissing the claim petition. 8. Therefore, the appeal fails and is dismissed. 9. No order aS'to costs.:'! Sd/- I.M.Quddusi Judge Sd/- N.K.Agarwal Judge \