FAO No.2761 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2761of 2010(O&M) Date of decision 29.7.2011 Nand Kishore Appellant v. Sandeep Kumar and another Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Naveen Bhardwaj,Advocate for the appellant Ms.Shamsher Kaur, Advocate for respondent No.2 JITENDRA CHAUHAN.J C.M.No.13016-CII of 2011 C.M. is allowed. Delay of 7 days in filing the appeal is condoned subject to all just exceptions. Main Appeal This appeal has been filed by the appellant-claimant against the Award dated 7.09.2009, passed by the Motor Accident Claims Tribunal,Bhiwani (for short the Tribunal). The brief facts of the case are that on 10.3.2007, Nand Kishore, appellant was going from Sector 13 HUDA, Bhiwani, to his house situated in MC Colony, Bhiwani, on motor cycle bearing registration No. HR-16E-3749 belonging to his son, respondent No.1 . When he reached near Mini Zoo, Bhiwani, all of a sudden a stray cattle came on the road, as a result of which, the motorcycle skidded and the appellant fell down. He received simple and grievous injuries. On his statement, DDR No. 10, dated 6.4.2007, was registered at Police Station, Civil Lines, Bhiwani. As the appellant received injuries in the accident by use of motor cycle, he filed a FAO No.2761 of 2010 2 claim petition. On notice, respondent No.1 resisted the claim on the ground that he is not liable to pay any compensation as he was the owner of the motor cycle and the said vehicle was insured with Insurance Co. respondent No.2, and the liability, if any, be fastened upon respondent No.2. It was further stated that the respondent No.2 is liable to idemnify the claim of the appellant, as the claimant was having a valid driving license to drive the motorcycle in question at the time of accident. In the written statement filed by respondent No.2, the claim of the appellant was denied on the ground that no such accident took place and in order to claim compensation from respondent No.2, the motorcycle has been shown to be involved in the alleged accident. The appellant received injuries due to fall on the metaled road or with some other vehicle and a concocted version has been narrated in the DDR, which is an afterthought. The Insured had contravened the terms and conditions of the insurance policy in as much as appellant was not holding a valid and effective driving license, so respondent No.2 is not liable to idemnify the insured. The question that arises for consideration before the Ld. Tribunal was “whether the insurer who issued the insurance policy would be bound to idemnify the claimant?” The Learned Tribunal observed that the liability under section 163-A of the Motor Vehicles Act,1988, ( for short the Act) is on the owner of the vehicle. A person cannot be both, a claimant as also a recipient, with respect to the claim. In the present case, the claimant-father, allegedly borrowed the motorcycle, from the owner,his son-respondent No.1. The claimant, therefore, cannot be held to be the employee of the motorcycle, FAO No.2761 of 2010 3 although he was authorized to drive the same by its owner, and he would step into the shoes of the owner of the motorcycle. In Ningamma & Ans. V. United India Insurance Co.Ltd. 2009(3) R.C.R.(Civil)435, the Hon'ble Apex Court held that 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 payment of the compensation is on the insurance company or the owner as the case may be provided under section 163-A of the Act. 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 compensation is on him. When, this test is applied to the case in hand, the claimant-appellant is not entitled to claim compensation under section 163-A of the Act. The Ld. Tribunal further held that in so far as the liability of the insurance company to pay just compensation towards personal accident as per the terms and conditions of the insurance cover are concerned, the claimant is not entitled to the same, as the motorcycle in question, was driven by the claimant, who admittedly is not the owner or the employee. The Ld. Tribunal, after examining the claim of the appellant in the light of the judicial pronouncements, dismissed the claim petition of the claimant-appellant being not maintainable in the present form. In view of the well reasoned findings arrived at by the Ld. Tribunal, no ground warranting interference in Award dated 7.9.2009, is made out. The appeal fails and is dismissed. (JITENDRA CHAUHAN) JUDGE 29.7.2011 ms