t.':.']' i PfiRF Mn ."^... 1 ' """^z:'^'9^ C-lc 1 ^" BEFORE THE HON'BLE HIGH COURTOF CHHATTISGARH AT BILASPUR a° M.A.(C) No. "I /2008 u^- -""? APPELLANT DEFENDANT N0.2 (0 :1 y"" ^2-,1^^1 I.J'*' Y IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) ^. ,^•1^pf^ RESPONDENTN0.1 CLAIMANTNO. 1 RESPONDENT N0.2 CLAIMANT N0. 2 RESPONDENT N0.3 CLAIMANT N0. 3 ./ RESPONDENT N0.4 DEFENDANT N0.1 VERSUS 1. 2. Bansilal S/o Bhuneshwarlal sahu, Aged About 44 years Sakun Bai W/o Bansilal Sahu, Aged about 43 years 3. Ramesh, S/o Bansilal, Aged about 18 r years All resident of Village - Kukda, Post Urla, Distt.- Durg (C.G.), Presently Residing at: Gopiyapara, District Raipur (C.G.) ^ '^ Ganesh Ram Sahu, S/o Khorbahara Sahu, Resident of Village - Kukda, Post Urla, BMY, District - Durg (C.G.) (Owner of Hero Honda No. CG 04 CH 7672) MISCELLANEOUS APPEAL UNDER SECTION173 OF THE MOTORVEHICLE ACT. 1988 Appeal valuedat Rs. 3,22,000/- Y \~-. \: ^ HIGH COURT OF CHHATTISGARH AT BILASPUR w APPBLLANT Misc. Appeal No. 998 of 2008 IFFCO TOKIO OENERAL INSURANCE COMPANY LIMITED RESPONDBNTS VBRSUS BansUal & others (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT) DB: Hon'ble Shrl Jnsttce N.K. Agarwal 8» Hoa'ble SIiri Justice R«L.Jhaawar. Present : Shri Vlkrant Singh, Advocate tbr the appeUant. Shri SC Verma, Advocate for respondent No. 1 to 3. ORALORDER (Passed on 13.04.2011) Per : N.K. Aganral, J. 1. The instant appeal has been preferred tw the appeUant against (he order dated 20.03.2008, passed by the VIIth Additional Motor Accident Claims Tribunal Raipur (for short the Tribunal') in claim case No. 16/06, awarding compensation of Rs. 3,22,000/- in favour of fhe claimants and as against the appellant/insurance company and the owr(er of the motorcycle. 2. Brief facts of the case according to the appeMant are that, on 18.04.2005, Peelaram (since deceased) while drivir^ Hero Honda inotorcycle beartag registration No. CG-04-CH- 7672, near Upadhyay Nagar all of sudden lost his balance over fhe'motorcycle due to burst and colUded with Truck bearing registration No. MH-31-AT-2488, as a resirit of ^. ..«]«% .a'^A which he succumbed to fhe injuries sustained in the said accident. 3. The claimants preferred an application before the Tribunal under Section 163-A of the Motor Vehicles Act, clalmlng compensatlon to the tune ofRs. 6,10,000/- for the death of deceased in the said accident. 4. The Tribunal, on a close scratiny of evidence led, material placed and subniissions made by the parties, awarded aforesaid amount in favoiir of the claimants and as against the appeUant and owner of motorcycle jotntly and severaUy along with interest @ 6 percent per araium from the date of application tUl its payment. 5. Leamed coiuisel appearing for the appellant would submit: clalm has been preferred by fhe legal representatives of the deceased who was driving motorcycle at the tiine of accident, deceased cannot be held to be an employee of the owner of fhe motorcycle although he was authorized to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the niotorcycle. Therefore, the deceased, not being a third party, fhe claim petition itself was not niamtamable in the eye of law and the leamed Tribunal has wrongly passed the award awarding Rs. 3,22,000/- as compensation agatast the appellant. 6. We have heard the leamed coiinsel for the partles and also . perused the'records ofthe Tribunal. », S-SK^ S ^^^ESS^' 8. Chapter XI of titie Motor Vehicles Act, 1988 deals with the motor vehicle against fhird party risks. By Section 146 of the Act, it was inade necessaiy for the user of a m.0tor vehicle in publlc place to have a policy of insurance against third party risks. Section 147 describes fhe reqiurements of policies and limits osf UabUity of such statutory policies. Section 149 mandates the insurers to satisfy judgment and awards agamst persons insured in respect of third parly risks. Sectlon 163-A provides special provision as to payment of compensatlon on stnictured formula basis. Section 165 empowers fhe State Govemment to constitute one or more Motor Accident Clauns Tribiinals to adjudicate upon claims for compensation in respect of aecidents involving fhe deafh of, or bodily tnjuiy to, persons arising out of the use of fhe motor vehlcles or damages to any property of a thu-d party so arising or bofh. A brief analysis of the above provisions would reveal fhat the claims Tribunals have been constituted for the piirpose of adjudicating upon the claims for compensation in respect of accident involving the death of or bodily injury to a third party arising out offhe use ofthe motor vehicle. HonTile the Supreme Court in case of Ortentat Insufwnce Compemg Ltd. vs. Rajnt Devt; reported in (2008) 5 SCC 736 has held fhat Section 163-A of the Motor Vehicles Act 1988 eannot be sald to have any application in regard to an acddent wherein the owner of the motor vehlcle himself is ""^ A l'-li!' ,-S''' ^'•^SKi'yiS' @ invoh^ed. It was further held that the Uabilily imder Section 163-A of fhe Act is only on the owner of the vehicle since a person cannot be bofh, a clalmant as also a recipient, the heirs of fhe deceased could not have malntamed a claiin in terms of Section 163-A of the Act. 9. In a case wherein fhe victun died or where he was permanentty disabled due to the accident arising out of the aforesaid motor vehicle tn fhat event fhe UabUlty to make payment of fhe coinpensation is on the Insurance Company or the owner, as the case may be as provided luider Section 163-A of (he Act. But if it is proved that (he driver is the owner ofttie motor vehicle, in that case the owner could not himself be a recipient of compensatlon as the liabflity to pay the same on him as held by HonTale fhe Supreme Court in case of M.ngemuna cmd dnother i«s. Ohtted Jn*Ua Instircince Cmnpemy Limtted1. ). Accordingly, fhe claunants who are fhe legal representatives of the deceased who stepped into shoes of the owner of the motorcycle could not have clanned coinpensation under Section 163-A of the Act and the leamed Tribunal went wrong in awarding compensatton to fhem. 11. At fhis stage, we have perused the policy of insurance filed by fhe appellant/Insurance Company. Under fhe pollcy, the appeUant had undertaken the risk of owner-driver of ' 2009 (13) SCC-710 @ the vehicle to fhe extent of Rs.1,00,000/- by taking a premium ofRs.50/- fherefor. 12. Although Section 147 of the Act does not require an Insurance Company to assiime risk for the death of or bodily injuiy to the owner of the vehicle but the appeUant/Insurance Company has assumed the risk of owner-driver by entering Into fhe special contract wifh the owner of fhe vehicle by chai^ing additional premium of Rs.50/- therefor and, therefore, fhe appeUant/Insiirance Company certainty owe a liability towards legal representatives of the deceased i.e. deemed owner of the vehicle to fhe extent ofRs. 1,00,000/-. We held accordingty. 13. For fhe foregoing, fhe appeal is allowed m part. The award is modifled to the extent fhat fhe appellant/Insurance Company is liable for payment of compensation to the claimants to fhe extent of Rs.1,00,000/- only mstead of ainount awarded by the Tribunal. The above amount of compensation shall carry interest @ 6% per annimi from th? date of application as awarded by fhe tribunal. The appeUant/Insurance Company is granted three months' tune for payment of above compensation. Sd/- N.K.AgarwaE Judge R.L. Jhaiiwar Judge Sahu s'~.