\f THE HIGH COURT OF CHHATTISGARH AT BILSAPUR ^^ MAC WNO.....A. J. .7 ":./2008 1.^. irt" f St-! APPELLANT/CLAIMANT <2^ v.1'.••••'•' i-te^ q..^-&"" Versus NON- APPLICANTS Goutam Jain, aged about 21 years, S/o Shri Sheetal Jain, , residing at Ward No.11, Bakshi Marg, P.S Khairagarh Tehsil Khairagarh District Rajnandgaon (C.G.). lAteendra Dubey S/o S.K. Dubey residing at Brahman Chowk ,Raipur Distt. Raipur (C.G.) 2.The Oriental Insurance Co. Ltd. Branch office Kamthi Line Rajnandgaon Distt. Rajnandgaon (C.G.) IVIISCELLANEOUS APPEAL U/S 173 OF THE MQTOR VEHICLES ACT,1988. L ^y--\ ^!.. 'V^S /v^, HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'b'le Shri Justice I.M^uddysi, & Hon'ble Shri Justice Prashant Kumar Mishra, JJ, M.A. IC} No 1327 of 2008 Hiralal Jain and others. Ateendra Dubey and another. .A. (C) No 1328 Of 2008 Versus I.A. (C) No 133& of 200i Ateendra Dubey and another. JUDGMENT FOR CONSIDERATION Hon'ble Shri I.M. Quddusi. J, Sd/- Prashant Kumar Mishra Judge JUDGE 0^-03-2011 ./ PostforO/- 03-2011 Prasbaai Kumaf Mis Judge '^\ iS '<@Ey J ^"n^a_s ^- *tr •ELLANI ITOF rton'ble iM. Quddusi. 8 Hon'ble Shri Prashant Kymar.Mishra, JJ. l«-..l reo. 'iu-f-'OT zvus f"ons lirala! Jain and others. SMS ndra Uu&ey ana another >'»0n» G im J^in <<• ^.t I! i . Ateendra Dubey and anothei of Deependra Singh and others. Versus ^fd^nfjf^ nii|^<av ?3nd ^nRth^i 1 d L—/£^(A/^-/:^iSS E\IA £-^3 S\/LJ i'^-T^ * EOIJ! lif.c U;S 'SIS VEH!C! Shri Anand Dadariya, counsei for the appeliants. Vipin Tiwari, counsel for respondsnt No.2. (Delivered on 0< ,'0^/2011 *bi^rf^fi'&4d I. By this common order. M.A.(C) No. 1327/2008; M.A.fC) No. 1328/2008 and M.A.(C) No. 1330/2008 are disposed of analogousSy, as ai! the three arise out of common aocident InvoMng h'ero Honda rnotorcycle bearina registration No. C.G.04 Z.N./9449. The ' 2.- appeliants/claimants of M.A.(C) No. 1327/2008 are the legai representatives being the parents and sister of deceased Manoj Jain whereas M.A.(C) No. 1328/2008 has been preferred by the injured ciaimant and M.A. (C) No. 1330/2008 has been preferred by the parents and sister of deceased Saket Singh. The Claims Tribunal has aiso disposed of ail the fhree ciaim petitions by common order, dismissing the clalm petitions. (2) The claims petitions were preferred under Section 163 A of the Motor V/ehicl®Act on the pleading imera!ia that at about 23.00 hours on 15TO/2007 deceased Manoj Ja;n and Saket S'ngh were coming back from Khairagarh to Rajnandgaon on the motoreycie belonging to respondent No.1 and when they reached near Sonesarar Rice Mill, the motorcycle was dashed by an unknown Sumo vehicle causing injuries to Manoj Jain and Saket Singh. Manoj Jain was brought to Govemment Hospital, Khairagarh from where he was referred to Chandulal Chandrakar Memorial Hospital, Durg as the injuries suffered by him were found to be serious. He was admitted in the hospital from 15/05/2007 to 22/05/2007 and died during the sntsr/ening night of 22'ld and 231'd May 2007. Saket Singh had died on the spot. For the death of Manoj Jain claimants ciaims compensation of Rs.8,07,000/-: for the death of Saket Singh the claimants ciaimed compensation of Rs.8,54,000/- and injured Goutam Jain claimed compensation of Rs.9,82,000/-. (3) The respondent No.1, the owner of the motorcycle defended the claim by submitting that his vehicle was insured with the respondent No.2 - Oriental Insurance Company and as such he is not liable to pay any amount of compensation to the claimants. The respondent No. 2 Insurance Company, in its written statement, submitted that the ciaim petition under Section 163-A of Motor Vehicle Act, 1988 (for short .-\ s- 'tha Act) 'ss not maintalnable. According to the Insurance Company deceased Manoj Jai" was a pillion-rider and driver of the motorcycle narnely deceased -Saket Singh who stepped info the shoes of the owner had no valid and effective driving lic°nce and as such the Insurance Company is not iiable to indemnifv the insured. (4) The claims Tribuna! has found that the accident was caused by the unknown Tata Sumo vehicie and the motoreycle was plied in breach of terms of the policy because at the time of accident three persons were traveiing on the motorcyde. if has further found that the policy covered the owner of the motorcycle to the extent of Rs. 50.000/- in the e'/ent the motorcycie is a'riven by the owner himself and that since no premium was paid to.cover the pil!ion-ridsr, deceased Manoj Jain was also not covered under the pollcy. The Tribunal has also found that at the time of accident motorcycie was not In running condition and since otheni/ise also three persons were traveiing in the motorcycle at the time of accident, the claim petition filed under Section 1 63-A of the Act desen/es to be dismissed. (5) Learned counsel for the appeflants has submitted that the application under Section 163-A ofthe Actwas maintainable inasmuch as even if the motoreycle was not in actual running condition at She time of accident, its use has been proved, therefore the Tribunal should have ailowed the claim. He wouid further submits that breach ofterms of policy has not been proved and that in cases under Section 163-A of the Act neg'tlgence of the driver of the vehicte need not be proved, therefore the ciaimants are entitied for compensation. On the other hand, iearned counsel for the respondent No.2 has supported the av/ard and submitted ihat the appeal has no substance and it deserves to be dismissed. (6) The appeilants have stated that in fact, only Manoj Jain and Saket Singh were traveiing in the motorcycte and were talking to Goutam Jain -^ near Sonesarar Rice Mill and have thus tried to put forth a case that three persons were not traveling in the motorcycle, however from the contents of the F.1.R. registered by the Khairagarh Police Station on Crime No. 152/2007 (Ex.P/2) immediately after the accident, it has been reported by one Rajendra Khatri, friend of Goutam Jain and Manoj Jain to the effect that all the fhree persons were traveling in the motorcycte which was dashed by unknown vehicle. It appears this person who has lodged the F.I.R. has not been examined during the enquiry before ttie claims Tribunal and 'njure;! Goutam Jain has tried to make out a case that only Manoj Jain and Saket Singh were traveling in the motorcycle and he was standing on the road, however the said ston/ become doubtful in view of the contents ofthe F.I.R. lodged immediately after the acddent. thus it appears that three persons were traveling in the motoreycte at the time of accident. In the matter of Or'ental Insurance Company Limlted Vs. Sudhakaran K.V. and Others reported in (2008) 7 SCC 428 the Hon'ble Supreme Court has held that ttie piilion-rider traveling in a motorcycle is not to be treated as a 'third party' and further that such a pillion-rider would be covered under the policy only in cases where additional cover is purchased under the contract of insurance. In the present case N.A. W/1 Sharad Thakkar, Development OfFicer ofthe Insurance Company has proved the policy and has stated that no extra premium was paid to cover the pillion-rider sitting in the motoreycte. Thus the pillion-rider namely deceased Manoj Jain as well as claimant Goutam Jain were third party as in the preceding paragraph it has been found that all the three persons were traveling in the motorcycle which was driven by deceased Saket Singh. (7) In the matter of Ningamma & another Vs. Unfted India Inswance Company Limited reported in (2009) 13 SCC 710 the Hon'ble Supreme -5 Court relying on its earller judgment in the matter of 0r(2008) 5 SCC 736iental Insurance Company Ltsf. Vs. Rajnidevl reported in, has held in paragraphs 20,21,22 and 23 as under;- "20. It was held in Oriental Insurance Co. Ltd. case that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicte himsetf is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant is atso a recipient, with rsspect to ciaim. Therefore, the heirs of the deceased coutd not have maintained a claim in terms of Section 163-A ofthe MVA. 21. In our considered opinion, the ratio of the decision in Orienta! inourance Co. Ltd. oase is clearly applicable to the facts of the present case. tn the present case, the deceased was not the owner of the motorbike in quesiion. H® borrowed the said motorbike from Its real owner. The deceased cannot be held to be an employee of the owner of the motorbike aithough he was authorized to drjve the sgid vehrcle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Sectfon 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear ftat persons iike the deceased in the present case wouid step into the shoes of the owner of the venicle. 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 liabiiity io make payment of ths compensation is on ttie insurance company or the owner, as ths 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 ttie owner could not himseff be 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 Uie MVA. Accordingty, the iegal representatlves of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have ciaimed compensation under Section 163-A ofthe 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 comlng to the concluslon that the sald provlsion Is not applicable to the facts and circumstances of the present case." '•<>',.'-^^- 6 (8) When the law laid-down by the Hon'ble Supreme Court in the case of Nmgamma & another Vs. Unlted Indfa Insurance Company Llmlted (supra) is applied to the facts of the present case, it would be apparent that the driver of the motorcycle namel;y deceased Saket Singh stepped into the shoes of the owner and another two were pillion-rkler, thus all the three claim petitions fi!sd against the cwner and insurer of the motorcycle are not maintainable because deceased Saket Singh borrowed the vehicle from rts reat owner and stepped into the shoes of the owner and as such his legat representatives cannot claim compensation from the owner of the vehicle because deceased himself stepped into the shoes of the owner. Similarly when respondent No.1 was relieved from payment of compensation with respect to death of deceased Saket Singh who was driving the vehicle after stepping in the shoes of the owner, the said respondent i.e. the real owner of the vehicle cannot be made liable to pay compensatjon under Section 163-A of the Act with respect to death of piliion-rider because, firstly, pillion- rider were not covered under the policy and were not third party and secondly it was deceased Saket Singh who stepped into the shoes of the owner and thus the petition under Section 163-A of the Act, against the respondent No.1 was not maintainable. (9) We are consdous of the fact that the Insurance Regulatory and Deveiopment Authority (I.R.D.A.) issusd a Cireular on 16"' November, 2009 directing all Insurance Companies to not to raise grounds to avoid liability with respect to pillion-rKler in cases, where the two wheeler is covered under the Standard Motor Package Policy, however in the present case the subject policy (Ex.D/1) is not a package policy but is only a policy captioned as "tiability only policy for Zone B, motorcycte and no extra premium has 7- been paid for pillion-rider." Thus, the piltion-rider is also not entitled to the benefit of I.R.D.A. Circutar. (10) tn view of the above discussion, this Court finds no substance in all the three appeals, which are liable to be and are accordingly dismissed. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge