IN THE mGHCOURT OF CHHATTISGARH AT BILASPUR MISC . APPEAL ('C1NO. 1.3 /2011 " APPELLANT NON APPLICANT N0 .3 The New India Assurance Company Limited ^.^se^^C.. ^ ^--•^^^..^ y,as^ ^EESPONDENT o*ed'" APPLICANT VERSUS , Duvasiya Bai & 7 Others APPEAL VALUATION AT RS 5.01.000 /- AppgUant (ON AFPLICANT N0.2 ie New India Assurance Co. Ltd. through Its Branch Manager, Second Floor Rama Trade m Front ofRajive plaza Biis Stand Road Bilaspur, Distt Bilaspur, [ C.G Versus RESPONDENT NO.-l (^ Duvasiya Bai Wife Late Dilip Nishad APPLICANT Aged about 23 years ?) Sagar s/o Late Dilip Nishad Aged about 7 years. [c) Ganga d/o Late Dilip Nishad aged about 5 years. (d)^ Shubham s/o Late Dilip Nishad aged about 3 years ^) Surya s/o Late Dilip Nishad aged about 1 year ^ Bhagavati w/o Krishna Nishad aged about 45 Years (g) Krishna Nishad s/o Late Jhattu Ram aged about 48years (Applicants no (b) to (e) are minor through their Mofher Duvasiya Bai Nishad w/o Late Dilip Nishad All R/0 Domuhani, Thana Towra Tehsil Distt Bilaspur(C.G) RESPONDENT N0 2_ NON APPLICANT N0 1 Kamli Devi w/o Santosh Nishad, Shakin Gram Domuhani p/o Lal Khadan, Thana Torwa Tehsil Distt BUaspur (C.G} MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 /€sc^ feL-^^ 1 iWifS^ j 1 U^s»3B»s^ea»>—ftfl—. dra Bilohan Shr .^A^a?-. I | nu. c i ne Ne'A' india Assurance uompany Ltd. Uuvasiya Bai anct omers ~*s APPEAL UNDER SECTiON 173 OE_iviOTOK'VfcMJ£LEACT,_1»88 •esent: snrs ueepak Shri Gaistarn counsei ror tne il cour-sol fi- fhcs r^vtnr'inri^n^ ~-—. p^ »r> ,1WV W . 3'" of IViav. 1. Thls appeai has been filed under Section 173 ofthe Motor Vehicles Act, 1988 (for short 'the Act, 1988'$ against the impuaned award datea 23/09/2010 passed by the iXth Motor Accident Ciaims Tribunai (FTC), Bilaspurin cialrn petition No.15'2010, aliowing the ciaim appiication ofthe ciaimants, av/ardlnfl Rs.s.ui ,000/- as compensaiion to the ciaimants. 2. briet tacts ot the case are that on "l T02,'09 at B:55 Plvi. the oeceasea uilip Nisnaa was going to nis viiiage- uomunani on motor cycie registerea as C.G.10/EC-0112 or Kamii Bai to attend a famiiv' function caiied Chhatthi at Devrikhurd. On returning back from Devrikhurd to Domuhani, he met with an accident ana received gnevous injunes on his neaa. ! n'ereaner, he was Drougnt to the SiMS v/nere he was deciared;dead. The accident was reDorted in the poi.ce statson - lorwa ana me ponce registerec- merg intimacon. i ne aeceaseci •rvas a voung man and he was working as a meson. The ciaimants 'A'ho are the wife, chi'dren and parents of the deceased, had filed claim appiication under yeccon 183-A or the Act, isyy, seeKing compensacon to tne tune or Ks.b~,/u,uuu/- on tne grouna tnat tney wers aepenaem on me cieceasea, wno /'^s^ ^ i fc"?'^B^ il 1 '<5S>-~''~^ fl vvas tne soie earning memoer in tne ramiiy, ana aue to nis aeatn, mey nave surrerea loss of income. 3. Learned Claims Tribunal having reaard to the facts situation and the evidence on record heid that the claimants are entitied for compensation of Rs.5,01,000/- under various heads and the appeilant-lnsurance Company is liaBie to pay tne amount or compensation to the ciaimants, 4. Vv'e have heard iearned counsel for the partles. We have perused the reeora or tne uiaims i nDunal as atso trse imDugnea awara. 5. since ine aeceasea was a anver of me iwotor uycie anQ Dorroweci tne same from its real owner, therefore, as provided in the case of Orientaf EnsEjrasice wompany Ltd. v. Kaini Uevi ana otners fzuutfi & suc f'se ana Njgamma and another v. Unlted sndia insurance ComDanv Ltd. (2009) 13 .SCC 710. he was oniy authorised to use / drive the motor cycEe by its owner and mererore, ne wouid step into ine snoes of tne owner of tne motor cycfe. AS the c'aim Demion was nied under Sectlon 163-A ofthe Act, 1988, the Drovisions of Section 163-A are liab'ie to bs perused before proceeding further, which are reproaucea as unaer - "183 A. Special provisions as to payment of compensation on structurea Tormuia Dasis. - (i) Notwimstanaing an'ytnjn< contained in this Act or in any other law for the time being in foree or instrument having the foree of law, the owner of the motor venicie or tne autnonzea insurer snaii be iiaose to pav in the case of death or permanent disablement due to accident ansing out or tne use or motor venicie, compensation, as Indicated in the Second Schedule, to the iegat heirs or the vicnm, as fiie case may &e. Expianation.— For the purposes of this .sub-section, "permanent disabiiity" shaii have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (•!;.! in any ciaim Tor compensation unaer suD-secflon (1), me ciaimant shaii not be required to plead or estabilsh that the roi' aeath or permanent disabiement in respect of which the claim has been made was due to any wrongful act or negtect or defauit of the owner of the vehicle or vehicles concerned or of anyotnerperson. (3) The Central Government mav; kseping in view the cost of iving DV notjtication in tne uniciai Uazstte, trom time to time amena tne tiecona scneauie." e. in tne case or Court has heid inentai snsurgnce o'ompany (supraj me Mon'Die Apex "iu. liie iiaDility' under Section 163-A or tne Act is on tne ov/ner OT tne venicie as a person cannot be Dotn, a ciaimam as also a recipient. l ne neirs or janaK Kaj (tne aeceasea) couia not nave maintainea a ciaim in terrns OT section 1 ti3-A OT tne Act. For the said purpose oniy, the terms of the contract of insurance couia De taKen recourse to." /. In tne case o unentai insurance unaer - f Nigamma (Supra), foiiovving th.e decision in the case uompany !Supra,i, me Mon'Die Apex court nas tielci '"2:2.. in a case wnsrein tne victim aiea or 'A'nere ne was permanentiy aisaDiea aue to an acciaent ansing ous or tne aforesaid motor vehicie in that event the tiabilifrs' to make peyment of the compensation is on the insurance company or tne owner. as tne case mav De as Droviaea unaer section I B3- A. but ir it is Droveci tnat me anver is me owner ot me motor venicie, in tnat case tne owner couia not nimseir be a recipient of compensation as the iiabiiity to pay the same is on h.lm. This proposition is absoluteiy clear on a reading of Section 163-A of the MVA. Accordingiy, the iegal representatives of the deceasea wno nave steppea into tne snoes OT me owner or tne motor vehicie couid not have claimed comDsnsation uncter Section 163-A ofthe MVA. 23. 'When we apply the said prlncipie into the facts of the present case we are of the view that the ciaimants were not entitied 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 Drovision is not aDDiicabie io the facts anci circurnstances ofthe present case." Hc'wever, in the case of Orientai Insurance Company (Supra), the Mon'&le Apex Court awaraecf Rs.1,00,000/- to the ciaii-nants, according to the terms ana contract or insurance, as the IJabiiifry' of the insurance Company was confinsd to Rs.1,00,000/- only in that case and it was iiabje to the sais extent and not any sum, exceeain.a tne saia amount. » y. !n tne insiant case, ;ne ciaimants would not be entitleci to ge? any amount as tne deceasea stepoea 'nto me snoes or tne ovi'ner ana' tne owner couia not De a recipient of compensation as the iiability. to pay the surn is on hirn. However, the insurance Company. cannot deny to pay the amount In terms of contraci of insurance, as it is its liabil'ity. According to the terms of contract of jnsurance policy in question, the contract amount is confined io Rs. 1,00,000?'- and iherefore, the ciaimants wouid be entitied to get Rs.1,00,000/-. in the result, the appeal is aiiowed in part. The i'mouaned award is set aside with the direction that th®claimants wouid be enti'tted to get Rs.1,00,0,00/'-, wnicn snali De paia' by the appeiiant -insurance Company to the ciaimant^. They snsii also be entitled for interest @ 6% p.a. on the awarded amount from the date or niing or ciafm perition tili actual payment is made. The amount aiready aeposreea or paia EO tne cialmants shal! be acfjusted .towards the amount or compensat'on. 10. The appeai is accordingiy aiiowed in part. No orders as to costs. Sd/- I.M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge UwSp^