v', THE t^; S^P fC.G.) No Ul'l> / 2007 Vinod Kumar, S/o. Shani Kumar Madhukar, aged about 21 years, R/o. Village Konargarh, P.S. & Tahsil Pamgarh, District Janjgir-Champa (C.G.) 1. > 5. ^ '; Smt. Kamleshwari Bai, Wd/o. Late ManojKumar Madhukar, aged about 25 years Ku. Puja, D/o. Late Manoj Kumar Madhukar, aged 6 years Rahul, S/o. Late Manoj Kumar Madhukar, aged about 3 years Satyam, S/o. Late Manoj Kumar Madhukar, aged about 10 months Smt. Anju Bai, Wd/o. Late Manoj Kumar Madhukar, aged about 24 years 7 > / '/ 7 Ku. Bharti, D/o. Late Mai Kumar Madhukar, aged about 4 years Shani Kumar, S/o. Narayan Prasad Madhukar, aged about 52 years Smt. Geeta Bai, W/o. Shani Kujnar Madhukar, aged about 45 years Narayan Ramanuj ut.7 Prasad, Madhukar, b S/o. aged Smt. Nohar Bal, W/o. Narayan Prasad Madhukar, aged about 68 years 11. Ku. Aarti, D/o. Late Manoj ^ Kumar Madhukar, aged about • 1 year & 6 months No. 6 and 11 through natural guardian mother Smt. Anju Bai, minor no. 2 to 4 through natura! guardian mother Smt. Kamleshwari Bai W/o. Late Mano] Kumar Madhukar. All Resident of Village Konargarh, P.S. Pamgarh, District Janjgir-Champa (C.G.) 1L At present R/o. Viliage Kahraud, P.0. Risda, P.S. & Tahsil Masturi, Distrjct Bi'aspur (C.G.) 12. Chola Mandlam M.S. Genera Insurance Company Limited, through : Branch Manager, Head Office "Dare House" Second Floor No.2, Netaji Subhash Bos Road Chennai ^•^' "2> DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. 0. MINHAJUDDIN, JJ. Owner V! Vinod Kumar Smt. Kamleshwari Bai and others Mr. Goutam Khetrapai, counsel for the appellanVowner. Mr. Abhishek Sinha, counsel for respondent No.12/insurance company. ORDER (Orall th ^l; This appeal under Section 173 of the Motor Vehictes Act, 1988 has been filed against the award of the 8 Motor Accident Claims Tribunal (FTC), Bilaspur, (in short "the Tribunal") dated 17.9.2007 passed in Claim Case No.104/06, exonerating respondent No.12/insurance company from the liability to pay compensation to respondents No. 1 to 11/claimants. 2. Brief facts of the case are that on 18.9.2005 Manoj Kumar Madhukar was going to Konargarh from Kohrouda on the motorcycle iajaj CT-100 bearing registration No. CG-11-B-8026 of his brother. When he reached in between Kohrouda and Risda, one unknown vehicie dashed him with fuil force, as a result of which M-anoj Kumar died on the spot. At the time of accident, he was 27 years and was earning Rs.3000-3200/- per month by driving his own tractor. Therefore, respondents No. 1 to 11, being legal heirs ofthe deceased, fited a claim petition under Section 163A.af the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of te.15,35,000;'- against the death of Manoj Kumar Madhukar. 3. Heard learned counsel for the parties, perused the lower court record (LCR) as also the impugned award. ^^-"' V- 4. The contention of learned counsel for the appellant/owner is that respondent No.12/insurance company is liable to pay the amount of compensation and has been wrongly exonerated of its liabitlty by the Tribunal. 5. On the contrary, contention of learned counsel for respondent No.12/insurance company is that as per insurance poiicy, the risk of only owner-cum-driver is covered under the policy and as the deceased was not the driver, therefore, the insurance company is not liable and has rightly been exonerated from the fiability to pay compensation. In the alternative, the counsel for respondent No.tZ'insurance company has contended that the application fited under Section 163A of the Act, 1988 before the Tribunai by the iegal heirs/dependants of the deceased was itself not tegally maintainable, as from the averments made in the application itself, It is clear that the deceased, at the time of accident, had borrovved the said motorcycie from his brother i.e. the appeliant for his personai work and as such, he was no{ an employee of the owner and had, in fact, stepped into the shoes of owner, and therefore, under Section 163A of the Act, 1988, the L.Rs./dependanis cannot claim compensation, because the same person cannot be a claimant as well as recipient. The core question to be determined by this Court is - whether in view of the provisions of Section 163A of the Act, 1988 and the fact situation in the present case, the appiication u/s 163A ofthe Act, 19{ itselfwas maintalnable before the Tribunat? 7. It is not in dispute that the application for compensation was fited before the Tribunal under Section 163A of the Act, 1988. This Vi/as probably done because the accident w-as of hit-and-run category and the offending vehicle could not be identified. It is also not in dispute that the deceased had borrowed the moforcycte from the owner i.e. the present appellant and was going, at the relevant time, in connection with his persona! work, as such the deceased cannot be treated as an employee of the owner. In such factual situation, the deceased being the brother of the owner had stepped into the shoes of the owner and consequently, the L.Rs/dependants of the deceased cannot ciaim compensation under Section 163A of the Act, 1988, in view "^ 5 arovisions of the aforesaid section as the same person cannot be a claimant as weil as recipient, as has been observed by the Hon'bie Supreme Court in the matters of the Oiiental Inswance Company Ltd. Vs. Rajni' Devi and others, reported in (2G08) 5 SCC 736 and reported in 13 SCC 710. 8. Thus, in view of the above settied principles of.law, we are of the opinion that the application under Section 163A of the Act, 1988 fiied by respondenfs No. 1 So 11/claimants before the Tribunal was not iegaliy maintainable and the Tribunal was not justified in entertainins the same and fastening the iiability upon the appeliant/owner to pay compensation to the ciaimants. 9. Resultantly, the appeai is ailowed, the a'vvard 17.9.2007 is hereby set aside and the appetlant/owner is exonerafed frorn safisfying the impugned award. However, respondents No. 1 to 11/claimants shali be at fiberty to approach the appropriate forum for grant of compensation by filing a suitable claim petition under the relevant provisions ofthe Act, 1988, ifso advised. d ^\ ?^ 1 .T-b ^^^^1^—-^--4»^°»^.t^ Jfc .T"*^^4'/n- 'i u. IMO oraer as 10 cosis. Sd/- I-M.Quddusi Judge Sd/- G. Minhajuddin Judge