IN THE HIGH COURT QF CHHATISGARH AT BILAPUR (C.G.t Misc. Appeal^ No. T' ' *° 12007 APPELLANT V <--Bajaj Allianz General Insurance Company Limited, Shiv Mohan Bhavan, Vidhan Sabha Marg, Pandri, Raipur (C.G.) RESPONDENTS VERSUS 1) 4) ...^.^&-- Smt. Minaxi Wd/o Late Manjit Singh Aged about 35 Years, 2) ^Suruvinder Singh^S/o Late Manjit Singh Aged about 07 Years, 3) ^--Samarjeet Singh S/o Late Manjit Singh Aged about 03 Years, ^aramjeet Kaur D/o Dalbeer Singh Aged about 23 Years, 5) ^-Ra.]want Kaur D/o Dalbeer Singh Aged about 28 Years, ^Sukhveer Kaur D/o Dalbeer Singh Aged about 23 Years, Qarshan Kaur W/o Dalbeer Singh <'Aged about 55 Years, Palbeer Singh S/o Late Sardar Balwant Singh Aged about 60 Years, Respondent No. 2 8s 3 are mirior represented through natural guardian mother respondent no.l Smt. Minaxi W/o Late Manjit Singh, All resident of C.I.S.F. Quarters, Sector-3, Bhilai Nagar, District Durg (C.G.) (CLAIMANTSt .9)^ iMahesh Kumar' Agrawal S/o Gopiram Agrawal, R/o near Ganesh Bakery, New Khursipar, Bhilai Nagar, Tahsil and District Durg (C.G.) (OWNER1 il-^>< :N *66T so AOV As aaaNawv sv 8861 AOV saaomaA aoAom SHJ, doc2,T Nouoas aaaNn ivaddv 3.0 vin.asyaow.'asi > HIGH COURTOF CHHATTIS6ARH. BILASPUR DB: Hon'ble I.M. QUDDU8I & Hoa'ble G. MINHAJUDMK, 33 APPBLtANT: RESPONDENT8: i.A(Cl No. 776/2007 Bajaj Affianz General Insurance Coinpany Vs. Siat Minaxi axid ofhers MI8C. APPEAL XJNDBR SECnON 173 OF 'mB MOTOR VBHICU» ACT. 1988 Appearance: Mr. Sachin Singh Rajput> counsel for tfae appeBant. Mr. B. L, Sahu, counsel for respoadents 1 to 8. Mr. Manoj Jaiswal, counsel fbr.iespoiident iio.S, Per LM. OUDDUSI. J. OR^CffiaaER (OS^piOll) 1. Thfa appeal has been ffle^by the Instirance Coinpany agamst fhe unpugaed award'dafcd 25.04.2007 passed by thc XII Additioaal Motor Accident Claims Tribunal (F.T.C), Duig (C.G) in Claim Case No.65/2007 awardmg Rs.4,69,339/-. 2. Brief facts of ftie case as per fhe versiau of claimants are fhat on 03.07.2004 at about 12.15 iathe iiight deceased Manjit Singh was going to his house at fhe C.I.S.F. quarter by driving the niotorcycle bearing Regu.No.C.G.07/K-6299 belonged to respondent no.9. On the way wliea he reached at C.I.S.F. Office on the Central Avenue Maiu Road, Bt&lai, suddenly a catf has coine in his way and when he tried io save fhe sald catUe, ia fhat process, he inet wifh accident, as a result of which, he sustamcd head injuries and died. At fhe time of accidcnt, fh.e ^^gMfe-i^ p ."'•"" <*^^-. ^'•.^-s'^ g ../ / 5. 6. deceased was a young inan of 32 years old. He was workiag as Constable iu fhe C.I.S.F. aud was drawing a inonfhty salary of Rs.6859/- per inonth. The claunaats being dependents/legal representatives of the deceased have filed claiia petition u/s 163-A of fhe Motor Vehicles Act for the awaid of total conipensation ofRs.20,78,339/- onvarious heads. The leamed Clanns Tribunal having regard to the facts situation and laaterial on record, held fhat when Manjit Singh was driviag the xaotorcycle beariag Regn.No.C,G.07-K/6299, suddenly a cattle (calf) came ia his way, as a result ofwluch, fhe deceased rn.et with accident aud died and tiiere was no breach ofpoUcy conditions. Having fhus held, it has awaided a total coiapensation of Rs.4,69,339/- to fhe claiinants whfch fhey are entlfted to receive fpom thc aon-appUcaute joittfly or seveiatly. We have heard leamed counsel for (he parties and have also gone fhrough fhe records offhe Tribunal. A perusal of fhe evidence of Non-applicant iio.l Mahesh Agrawal (respondent no.9 hereia) who was the owner of fhe motoreycle No. Rega.No.C.G.07-K/6299 shows tliat fhe dece^ed has borrowed the said motorcycle fi?om Mm aad inet wifh accident wifhout inYplving any ofher vchicle. In fhe matter of Oriental Itisurance Company Ltd. V«. R^jni De^ reported in (2008) S SCC 736 Hon'bte fhe Supreme Court has held fhat Scction 163-A of fhe Motor Vehicles Act, 1988 cannot be said to have any application in regaid to au. accident wliereiu the owner of tfae motor vehicte Tiimself is iuvolved. It was furfher held fhat fhe liabiffly i undcr Section 163-A oftfae Actte on fhe owner of fhe vehicle since a person cannot be both, a claimaat as also a recipient aad flierefore fhe heirs of fhe deceased could not have inaintained a claun in terms of Section 163-A ofthe Act. Por fhe said pzupose, qvSy the terms ofthe conttact ofinsiirance could be taken recourse to. 7. Furfher in fhe matter of Niaganttma & aaother V». Unlted Indla Insurance Company Liaalted (2009) 13 SCC 710 Hon'bte fhe Supreme Court foUowing the case of Rqjni Dewi (supra) held in Paras 21 & 22 as under;- 1 "21. In our oonsidered opixuoa, ffae ratio of fhe decision ia Oriental Inswcmee Co. IML -ys- Rgjm Dem case ys eleariv aoplicablc to tfae facte ef fee gresentcase. In the present case, the deceased was npt fhe owncr pf tiie niotorbike in guestion, _'He _ boiiowed .the sad ffiotorbike £rom,ite real owner. The_dec®aarf^c be held to be aa employee of fhe Qwner of the inptorbike althpugh. he was authorized to drive fhe said vebjicle by ite owner and,_ therefore^ he would step intQitti&shQes_6ftheownerQfth.emotorl)ikc. We have already extracted Section 163-A of the MVA heiciabefore. A bare perusat of the said proivision would make it cxplicifly clear fhat persons Utee fhe deceased ia ihe present case would step into fhe shocs oftitie owncr ofthe vehick. .^r' 22. In a C.M.C wheiejn the victim died or where he was permanfiaflv disabled due to an accident arisin«out of 1 the aforesaud naotor vehicle iu that_event &e_Iiabiiity to make pavinent of the compensation is on fh.e ; insi.iraDcc coiaRany orfhe own.er, as fte case vaay be, ( as provided unddLSection 163-A, _ Butifjt js proved '1 '-( fhat fhe driver is the owner of fhe inotor vehiGle, ittlh fhat case the owner could not himselfbe ajrecH:neat_ofi i coaipensation as fhe Uability to pa^ fhe^ same te on hiin. Thte proposition is absolutely clear on a readine of Section 163-A pf fhc MVA. Accordinglv. fhe leeal represcntatives^ of fhe deceased who have steBpcd into fhe shoesjof thc owner of fhe nlotor velucle could not have clauned coiapensation. uader Section 163-A of fee MVA." (EmBliaris supBUedl A bare perusal of fhe decisions of Hon'ble thc Apex Court quoted above would inake it clear fhat persons Hke the deceased ni the present case would step iato fhe shoes of the owner ofthe vehicle. When we apply fhe said principlc into fhe facts of the preseut case we are of fhe view fhat the claimants were not entifled to claiia com.pensation iinder Section 163-A of theMVA. 8. Now if we coine to the aanual iacoiue of the dece^sed, ia fhe claim. petition itsclf fhe claimants have laentioned fhe iacoine of the deceased as Rs.6859/- per inonfh and Rs.82,308/- per nTiTinm. In support of fheir plcadmgs, fhe elau&ants ha»e examined Pravir Siuha (A.W.2) who has stated that as per fhc Pay Ccrtificate Ex.P.9, the gross pay of the dcceascd was Rs.7016/- aad fhe net pay was Rs.6336/- per nionfh. Since fhe annual income of the deceased was proved as Rs.76,032/- that is inore than fhc outer limit pf Rs.40,000/- fixed in fhe .^' ' '•.. .. Second Schedule appendcd to fhe MotorVchicles Act, 1988, on fhis groiuid also fhe claun petition filed u/s 163-A offhc Act is not inaiatamabfe. 9. In Deepal Garishbtd Sont -ro- DnUed Jndia Insurance Compimy Ltd.,Beirod (2004j 5 SCC 38S, a tfaaee Judge Bench of Hon'ble fhe Supreme Coitrt whilc reviewmg thc M t- B S ;fcl^>..:' y..,^ •-'atia.sSt9-' decision. of two Judge Bench ia case of Oriental Insurance Co. Ltd- Vs. HansTqjbhcd Vs. Kodala (2001) 5 SCC 175 held as under. "67. We, therefore, are of fhe opinion fhat Kodala'kas correctty been decided. However, we do uot agree wifh fhe findings in Kodala that if a person iavokes provisions of section 163-A, fhe anniial iacoiue of Rs.40,000/- per nnniini shall be treated as a cap. In our opiaion, fh.e pToceediag u/s 163-A beiag social securily provision, providing for a distmct scheine, only those whose aniiual iacoiue is upto Rs.40,000/- can teke fhe bencfit fh.ereof. AU ofher clauns are reqrmred to be detenuined in term.s of Chapter XII offhe Act." 9. In the iastant case, the claimants have successfuUy established befoTe the Tnbunal that fhe inonthly salaiy of fhe dcceascd was Rs.6336/- per nionth aad Rs.76,032/- per anmiTn and claiinant witness Pravir Siagh (A.W.2) has proyed fhe saine ou the basis of£x.P-9. 10. In view ofwhathas been discussed above, we are of fhe view fhat the claun petition filed u/s 163-A of fhe MVA M not laamtamable. Therefore, we atlcw fhis appeal, set aside fhe inipugn.ed award dated 25.04.2007 aad dismiss fhe claim. petition as not inauitamable. However, fhis wiU not debar the .^-" . . ' . •' . ' . . . claiinaafs to file a freah claim petition under fhe relevant provisions oflaw for the tune-being ia force. 11. In the result fhe appeal te aUowed. No order as to cost(s). Rao Sd/- jI.M.Quddusi Judge Sd/- G.Minhajjudin Judge 9