IN THEHON*BLB HIGH COURT OF CHHAmSGARH AT BILASPUR 2^^ M.A.(C) No. .7.^.... OF 2008 (APPEAL VALUED AT Rs 3,76.450 /-) ^"" APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT. 1988. Manger, United India Insurance Company Limited, Tara complex, G.E. Road, Bhilai, Distt.-Durg (C.G.) (Insurer of Motor cycle bearing registration No. No. CG 07 G/5303) VERSUS :1. Smt. Kamlavati Devi Wd/0-Late ^ Shri Ramashray Chaurasiya, aged about 45 years, R/O-New Krishana Nagar, Supela, Bhilai, Tah. & Distt. Durg (C.G.) (NQN-APPLICANTNO.l) :2. Jogendar Singh, S/O-Shri / , Dukalu Ram, R/0-Quarter No.- 4/R, street No.-24, Sector-4, Bhilai, Tah. 85 Distt. Durg, (Registered owner of Motorcycle bearing registration No. CG 07 G/5303) APPELLANT (I^ON- APPLICANT ^0.2) V .......^•^i^ ^• ^S'":^3r' '^wv'^-^^' "^d..-—""7J "' RESPONDENTS (APPLICANT) ^ II ll- •ll •^: HIGH COURT OF CHHATTSSQARH AT BILASPUR MISC. APPBAL (Ct N0.256 OF 2008 APPBLLANT/ NON-APPLICANT N0.2. RESPONDBNTS Maiiager^ Uuited ludia lusai'aLuce CoTnp^ny T^niit.e.fl. Versus Siiit^Kamlavati Devi and another. APPEAL U/S 173 OF THE MOTOR VEHICLB ACT, 1988 (DB: Hoa1»leShtl I.M. Guddusi & Hon*ble Shri G. Minhaiiiddln. JJ.S Presesxt : Shri Dashrath Grupta, eounselibr the appell^ Shri Saatosh Yadu, couusel for respondent No, 1, Nonc for fcspoiidcut No.2 though scrvcd. ORAL ORDBR (Passed on 27th ds^ ofJuly, 2011) Per I.M. Quddusi. J. This appeal has been filed by the appellaat/Iiisuraace GoBipau.y agaiiist flie Iiiipugned award dated 17-11-2007 passed by fhe Secoud Additional MotorAccident Clai.ms Tnbunal^ Dui^ (&r sttoit the Claiois Tabunal3) io. clatm case No.73/2006 ia so iar as it relates to fastening the liabUily to pay coiiipensation upon thie appellaiit/ Iiisurance Compaiay. 2. Brief facts of fhe case are fhat on 02-09-2005 deceased Ramashray Chourasiya was comln.g froBi Raipur to Bhilal by Hero Honda juLiotorcycle bearmg registration No, C,G, 07- G/5303, owned by respondent No.2 hereiii, wltii coiisent On fhe way, at G.E. Road ia frout of Pactiuiiiiagar, the said vehicle (Motorcycle) iaet wifh an. aecldeiit, as a dug was comin.g ftom fhe opposite slde aad whUe controlUiig thLe vehicle to save fhe dog, fhe accident was occurred, fhe dcceased ieU down from. the niotorcycle aad sustalried grievous injuries. He was adiultted to Sector-9 Hospital, Bhllai where he died duniig fhe course of freatmeiit, 3. The claiiaant i.e. widdw of the deceased, pi^ferred an application before fhe Tnbuixal cpiiceriied, under Sectfon 163-A of fhe Motor Vehicles Act (for short 'the Actj), claiming ^ v^4^ ^ ^ coiapeiisatiou to the tune ofRs.ll,33,340/-fi^rfhedeath of fbe deceased ia fhe saki accident 4, Leained Tribunal on a close scmtuiy of flie evideAice, inateiial placed aiid subniissions laade by tiie parties, has awarded a total sum of Rs.3,76,450/" as compensatlon agaiiist tlie non-applicatits along wifti iiiterest @ 6% pei aiinuiii from tiie date of fhe application tUl its paynieut, under various heads. 5. We have lieai'd flie learued comisel for fhe pai-ties aiid also perused fhe x-ecords oftlie Tribunal. 6. The claimaat has shown flie iiicoiiie of tlie deceased as Rs.73,095/- peryeai wliich is more fhan. 40,000/-. Therefoi^, tlie clakii petition iteetf was iiot mau.itali-iable at fhe veiy inception, 7. A fhree judges bench of Hoii^ble Apex Court iti flie case of Deepal Qirishbhal Soni wtd others vs. United Iiuiia Insurasice Co. Lt^..f Sexroda; reported m (2004) 5 SCC 385 has held m para 67 as tU-Ader: ffWe tiierefore, are of fhe opiiilori fliat Kodala has Goiiectly been decided. However, we do not agree witli tiie fmdiiigs iti Kodala fhsit ifaper^on iavokes provislons of Section 163-A, flie ajiinual iiicojxie of Rs.40,000 pei aarmm shall be ti-f;ated as a cap. In our opiaion, the proceedings uiider Sectk>n 163-A beiiig a social security provision, proyAdiiig for a distliict schenie, only fhose whose aiinual iiicojiie is up to Rs.40,000 can take tlie benefit tliereof. AU oflier clainis are required to be detemiuied iri terias ofChapterXIIofthe Act. 8. Furtlier, slace the deceased boiTOwed the iiiotorcycle from tlie owner witli his consent, he stepped iato tiie slioes of tiie owner, 9. HouTjle fhe Supreme Court ia the case of Oriental Insurwice Cmnpem.y Litrdted Vs. Rqfni Devi and othersf 1-epoi'ted m (20G8j 5 SCC 736, has held that Section 163-A of ,'^^/:^^ %j %J/ """"•^fc,^' ^ tlie Motor Vehicles Act, 1988 caaaot be said to have any application iri regard to aa accident wliereia tiie owner of the Biotor veliicle hloaself is iavolved, It was furtlier held tliaf the liablllty u/s 163-A oftlie Act is only on fhe owiier oftiie vehicle siiice a pei'soii caiinot be bofh, a clalmaiit as also a reclpient, th.e heiis of flie deceased could not have iiiamtauied a claLQi iu terins of Sectiou 163-A oftiie Act 10. Further, ia ease of Ningeunsrva wid another i?s, United Jndia Insurance Compwiy Limlted^ reported io. (2008) 13 SCC 710, followiiig tlie decision io. Oriental Ifzsurwice Conipmty Limlted^s. R^ni Deiyi cmd otfeers (supra), lias held as uuder iii paras 21 & 22 as»under: <<21. lu our consldered opiiiion, the ratio of tiie decisioii ia Oriental Insuran.ee Co. Ltd. case is cleaiiy appllcable to tiie facts of the present case. In fhe present case, flie deceased was not tiie owner of tlie aiotorblke in question. He borrowed tiie said jiiotorbike froni its real owner. The deceased caruiot be held to be an euaLployee offhe owner of thc niotorbike alfliough he was aufhorlzed to drive the said vehicle by its owner aad, tlierefore, he would step itito tiie shoes oftihie owner of tiie Biotorblke. We liave ak'eady extracted Section 163-A of flie M¥A herembefore. A bai'e perusal of fhe said provision would Diake It explicifly cleai- tliat persous l&e flie cleceased iii flie preseut case would step iiito fhe shoes of tlie owuer of tlie vehicle. "22. In a case whereiii the victlm died or where he was penD.ao.ently disabled due to an accideiit arising out of fhe aforesaid niotor vehicle iii tliat event tlie UabHity to iiiake payment of the coiiipeiisatlon 1s oil tlie iiisuraiice coiiipaay or fhe owner, as the case niay be, as provlded under Sectioii 163-A. But if it is proved fliat fhe driver is the owner of tiie motor vehicle, ia that case tlie !R,y'.,,«^&. iy''.r':1:':""i I'.t...^.,. tt.t-^sa l 1%.It. ^// ^'^ owner could iiot hioiself be a recipient of compensafcton as thc Uabilfcty to pay tibie saine is ou him. This propqsition is absohrtely ctear on a readmgofSeetk^ulGS-AoftheMVA fhe legal representatives of fhe deceased who have stepped mto fh^ slioes bfthe owuerpf^^&^ vehlcle could not have claimed compensation under Section 163-A ofMVA. 11. AdBilttedly, in fhe prfesent case fhe deceased was driviiig a inotorcycle which was borrowed fto nanxely Jogendar Singh/Respondent No.2 aad inet with aa accident without iir^Iviag any other vehicle. Since the deceased had stepped iato shoes of fhe owner df the vehicle, Section 163-A of fhe Act cannot apply whereia owner of the w;hlcle is mvolved. Hence, fhe legal representative of fhe deceased could not have claloie^ compensatfon u/ s 163-A of the Act. 1 12. In th& facts aad clrcuiiistaaces of thej present case, the appeal deser^es to be aUowed aiid 1s fherefore, altowed. The impugiied awarddated 17-11-2007 istterebys^tasideaml fhe claioi petttbn is held as n^t cialnJs^ 13. In view of the above, ttwlU be open^fo^ the claimant to take leco'ar^e of law available to fheni. ^ 14. The amount which is iii deposit shaU. be refuiided to tih^ appeUaiit/ Irisuraiice Coiiipaiiy. Sd/- §^/_ [ 1 G.Mmhajuddin I.M.Quddusi I | Jud8e Judge Kvr