-/ MlylsjQi gei^fe IN THE HIGH COIJRT JUDICATURE AT BILASPUR Misc. Appeay^klo./33'5^ OFC200& .100 7 APPELLANT (Insurer) CholGmandlam Insurance MS A Through ^ ^K'bivisional Manager General the ^"^^ -:.vo-"l ^'"W' >^^<?'" ..-T OC'S second floor, Super .->^y' ^\^%\\<^'1 Market Agrsen Bilaspur bistn'ct Bilospur Chouk ^^y' ^'^.••"'" A%^c' ^y" RESPON&ENTS: Claimants ^ Versu s ^ 1. Smt. Kamla Bai W/o late ^ / / ; Lharam Kurre Age 40 years 2. 6ourishanker Kurre S/o late Lharam Kurre Age 22 years. 3. 6hanarQm S/o late Lharam Kurre Age 20 years. 4. Mahesh Kumar S/o late LhGram Kurre Age 1-1/2 years. 5. Ku. Kiran D/o late LharGm Kurre Age 06 years. r^ (Respondent no. 4. and 5 are through there mother Kamla Bai ) ^ All . respondent are R/o Village- Devgaon P.0. Basin P.S. + Th. t>abbra Distn'ct.i Janjgir -Champo (C.G.) 6.NarayGn Kumar Kurre S/o ^' <^"" Owner of vehicle CQ 116-9440 Ramadhar Kurre age 32 years R/o Village- Devgaon P.0. Basin P.S. babbra District Jahjgir -Champa (C.G.) APPEAL U/S 173 OF THE MOTOR VEHICLES ACT AGAINST THE AWARO/ORDER DATEb 21.08.2007 PASSED BY S HRI A. K. PRA D HAN, ^TH E Ab DITIO NAL MOTO R ACCIDENT CLAIMS TRIBUNAL SAKTI. (C.G.) IN C.T.N0.82/06 -.^-^^'' HI&H COURT OF CHHATTISeARH AT BILASPUft &IVISION BENCH: HON'BLE ^. I.M.QUbbUSI d HON'BLE MR. PRASHANT KUMAR mSHRA, JJ. Appellant ftespondents M.A. (O No.1335/2007 Cholamandalam MS ^eneral Insurance Vs Kamla Bai and others Pr@s@nt: Mr. Abhishek Sinha, Advocate for the appellant. None for the respondents though served. ORbER (OraD (4th January, 2011) I.tt. Quddusi. J; 1. Heard. 2. The appellant-Insurance Company has preferred this miscelJaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ^l-he Act') against the impugned award dated 21.8.2007 passed by the learned Additiona! AAotor Accident Claims Tribunal, Sakti, bistrict Janjgir-Champa (C6) (for short 'the TribunaQ in Claim Case No.82/2006 aivarding a compensation of Rs.4,37,000/- to the claimants and fosteninQ liability on the appeltant-Insurance Companyto satisfythe award. 3. Facts of the case, in brief, are that the claimants, who are wiclou/ and children of deceased Lahoram, have filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short ^t-he Acf') before the Tribunal seeking compensation of fts.3,97,500/- for the death of deceased Laharam; vi/ho died on 02.11.2005 in a motor accident when the motorcycle bearing registration number C611-B-9440, on which the deceas^d was coming to ViliQge Devgaon from Dabhra, was dashed by an unknown AAaruti Van onthe way nearYillage6hoghri. ^ 4. Non-appticants No.l & 2 have filed their separate written statement and denied the cldm of the claimants. ^^^¥ fi ^: 5. The Tribunat, after hearing the pctrties in the matter and considering the mcrt'erial aVQilable on record, a^^ claim petition of the clQimQnts and awcirded asum ofRs.4,37,OQO/- as compensGtion. 6. We have heard Jearned counsel for the pcirties and perused the records of the Tribundl as also the findings given in the impugned award. 7. In the present case it is an admitted fact that the motorcycie did not beiong to the deceasecl and the deceased had borrowed the same from its owner namely Narciyan Kumor Kurre i.e. respondent N0,6 herein, for doing his own work and not the work of the owner and as such, the deceased stepped into the shoes of the owner. 8.1n the moitter of Oriental Insurance Cbmpany Ltd. Vs. Rcyni Devi reported in ^008) 5 SCC 736 The Hon'ble Supreme Court has held that Section 163-A of the AAotor Vehicies Act, 1988 cannot be said tb have any applicotion in regord to an accident wherein the owner ofthe motor vehicle himseif is involved. It was further held that the iiQbilJty under Section 163-A of the Act is only on the owner of the vehicie since a person cannot be both, a ciaimant as also a recipient, the heirs of the deceased could not have maintained a ciaim in terms of Section 16'3-A of the Act. 9. The Mon'ble Supreme Court in Para-21 & 22 ofthe judgment delivered in the matter of Ningamma A another Vs. United India Insurance Company Limited reportedin (2009) 13 SCC 710 has held thus;- "2l. In our considered opmion, the rotio of the clecision in Onentai Insurance Co. Ltd case is clearly applicable to the facts of the present case. In the presentcase, the cJeceased was not the owner of the motorbjke jn question. He borrowed the said motbrbike from its real owner. The deceased cannot be held to be an ©mployeeQt the owner of the motorbike although hewQS authorized to drive the said vehicle by its owner and, therefqre, he would step into tlie shoes of the owner of the motorbJke. We have already exfracted Section 163-A of the MVA hereinbefore, A bare perusal of-the said provision would mcike it explicitly clear /y^\ ^sy 'l^s^ that persons like the deceased in the present case would step into the shoes of theowner of the vehlcle. 22. In a case wherein the victim died or where he WQS permQnently disabied due to an accident arisinq out of the aforesaid motor vehicie in that event the liabiiity to make poyment of the compensQtjon is on the insurance company or the owner, as the case may be as provjciecl under Section 163-A. But ifit is proveci that the driver is the owner of the motor vehicle, in that case fhedwner could not himself be a recipient of compensotion as the liabiiity to poy the same Js on him. This proposition is absolutely clear on a readingof Section 163-A ofthe MVA. Accorclingly, the legal representatives of the deceosed who have stepped into the shoes of the owner of the motor vehicle could.not have claimed compenisation under Section 163-A ofthe MVA." 10. Thus, in view of the settled position Qf iaw, we are of the opinion that the cjajmants, who are legal representatives of the deceasedwho have stepped into the shoes of the owner of the motor cycle in question, could not hQve claimed compensatjon under Section 163-A tof the Act. 11, In the result, the appeal succeeds and the award ctated 21.8.2007 passed by the Tribunal in Claim CaseNo.82/2006 is hereby set aside. If ai'iy amount of compensation is deposited by the appellant with the Tribunal and the same has been wjthdrawn by the claimants, then the same would be recoverabJe by the aDpellant-Insurance Company. 12. However, it js made clear that though the respondents/claimants are not represented despjte service but This order will not debar them to move an appljcQtJon under Section 163 of the jAct i.e. scheme for payment of compensatiqn irt case pf hit and run motor accidents. 13. Certified copy as per" rules. ftoshon/-1 Sd/- LM.Quddusi Judge Sd/- prashantKumarMishra Judge