^^^•y^' r'-'^^-&'G';M^ yjMs '•^iMiil /-')./7 p/? F'..^.,n-.^./^^^r'.^^./^.;^ <>,^/^^ !RN THE HON^LE HI<^ GOijI^ ^ ^' M.A.(C) N6.^^. S OF 2007 ^APPEALVALUEDATRs 4.361500^-1 APPEAL UNDER SECTION 173 QF THE MOTOKVEHICLES^MII'U^Sa. APPELLANT (NON- APPUCANT N0.3 : W»--""^Mt ^s....-^ ^^^^ ^y'"y^- ^^ RESPONDENTS (APPLICANT 1 ) (APPUCANTN0.2) VPHJCANTNO.3) PPUCANT N0.4^ The Newl India Assuraiice Compaiiy I^mited, Through^ Di^sionjal- Mahager, Divisionjal-pffice, Raina^ Trade Centre, N?ove .U.T.I. Bank, Bus stafad Road, Bilaspur, Tali. & Distt.-BUaspur (<C.G.). ^ :1. ,^r :2. > :3. -.-^:. •^ •"T • ^, (APPLICANT N0.5) :5. ^> (APPUCANT N0.6) :j6. > Ku. Sar^eeta D/O-Late Surc^ Kjumar SuiyavarisIti(K]iahdekar^^^^^^^f aged-OSyears, Ku. Shalmi D/p^^teS^sh^^^^ ^ Kuniar Suryayanshi(KIiandeka^ Qg^d^^year^ Ku.Sudha D/^O-Late Suresh Kumar. [ Suryavanshi^' (Khandekar), aged -06 Rahul Kumeu- S^Q-Lafe ^ SureshRumarSuFyavanslii(K ^ j handekar), aged -02 Res.No. (2)Minor-thrjOugh- motber Smt Cbanda Patel (Res.No. l^ % AU are R/0- village- SirpTL.ir, P.0. Balauda, Tahsil- Saraipali,Distt.- Mahasamund(C.G.) Smt. Santara Bai W/Q- j^-; Premcharid Suiyawanshi, Aged-48years, Preincliajid Sur^ :.^^j S^Q-KislTanran:!^ 'Aged-SC^ars,!:''^'^''^'.'1.',1,^^ u 1:111 Li^L... (NON-APPLCANT N0.1) "s Re^.No.^tQ^^i-e-Miao?- 'I^rdugh:^^ 1^ res^cm^^^^^^^^^^^^^^^^^^^^^^^ ^ Surya\^shi(Natural-giiardian) AU are R^O-^^^^ Tahsil & P.S.-Masturi, Distt.- Bilaspur(C,G.) i , jagat-Singh ©ondS/Q^o^ smgh Gbnd, jB/^^.-Kaii^ Tah. & P.S.-Pamgarh, Dtstt.-^ :^JanJgir-'C^ampa!(CG)^:';^:;.' (Re^ered. owaer Qf,Motor^ no.CG ll/BA/d690) ,^5 2n©MCOVRT Or OHHMTXSOARa s VSLASVSJm Divteion Bench i Hon^ble Shri I. Bt. Qudduail & Hon^ble Shri Maniadra Moliau SliflwMBtaroa* JJ. M.A ia No. 1388 of 2007 APPBIAANT The New India Assuranee Compaay Ltd. Venius RESPONDBNT8 Ku. Sangeeta & Ors. Appeal u/8 173 of the Motor Vehtelea Act, 1988 ApBearance: Shri Dashrath Gupta, counsel for the appeUant. Shri Ctoutam Khetrapal, counsel for respondent No.6. None for ofher respondents. ORD®K(Omli (Passed on this 4^ day ofMay, 2011) Per I. M. Quddusi, J. 1. This appeal has been ffled toy tfae appeUant/insuEraace Osmpany against fhe impugned award dated l01al August, 2007 passed by fhe 9ttl Additional Motor Accident Claims Tribunal (FTC), Bilaspiir, tn Claim Case No. 11/2007 on Uabmty part. 2. The brief facts ofttie case eure that on 22.8.2006 owner of fhe motorcycle bearing registration No. C.G. 11 BA-6690 sent deceased- Suresh Kumar on his motorcycle to tavite hls relations to attend family ftinction. While deceased-Suresh Kumar was dnylng ftie motorcycle, near tlie tum ofviMflge .-^ % '^gP^®S :i%^ "^!^ ^•^^ 4. Pakariya, the motorcycle met with accident, wlricti yesulted i9 in serious injuries on the person ofthe driva'. Suresfo Kumar was admitted in the Qovt. Hospital at Pamgarh, where he died. The claimants i.e. aSleged dependents of deceased-Sia^sh Kumar ffled a claim petition nnda' Section 163 A of Motor Vehicles Act., 1988 (hereixiafter referred to as utheActqfl98S^ before the Motor Accident Claims Tribunal, claiming compensation of Rs.4,41,500/- under various heads, in which, the owner ofthe vehicle was non-applicant No. 1 and fhe New India Assurance Company, was non-applicant No.2« It was alleged that the owner of fhe motorGycle eixtanisted some work to be done by the deceased by using his motorcycle and he met with accident duTiaig fhe cotirse to ftilfill the responsibility imposed ty fhe owner. In the case of Oriental &ruraa<» Cioakpaay Itlaalted Vs. R^nt De^ and others (2008) 5 SCC 736 tiie Apex Oourthas held fhat Section 163-A of fhe Motor Vehicles Aot, 1988 cannot be said to have any application in i?egani to an accldent wherein the owner of the motor vehicle hioaself is tnvolved. It was furfher held that the Uabffily u/S 163-A of fhe Act is only on fhe owner of fhe vehlcle smce a person cannot be ,both , a claimant as also a peGipient, (he helrs of the deceased could uot have maintained a claim in terms of Section 163-A offhe Act. \ /-...^.N 5. Further in fhe case of inngamma and aaother Vs* Ualted ^ Indla In»umnce Compaay Liinlted (2009) 13 SCC 710, following the decision in the case of Oriental tomaraa®® Company Llmlted (supra), (he Hon'ble Apex Court has held as iinder: "21. In our considered opinion, the ratdo of ttoe decision in Oriental Snsurcmce Co. Ltd. case^ is clearly applicable to the facts of fhe present ease. In the present case, fhe deceased was not ftie owner pf ftie motorbike in question. He borrowed ftie ssdd motorbike Irom its real owner. The deceased caimot te held to be an employee of fhe owner of the motorbtke alfhough he was aufhorised to drive ftie sald vehicle by its owner and, therefore, he would step into fhe shoes of fhe owner of fhe motorbUce. We have ali?eady extracted Section 163-A of ftie MVA hereintbefore. A bare perusal of fhe said provlsion would make it expllcitiy clear that persons like the deceased in fhe present case would step into fhe shoes of the owner of the vehicle. 22. in a case wherein the 'idctim died or where he was permanentty disabled due to an accident arising out of the aforesald motor vehiele in (hat event the MablMty to make pa3^ment of fhe compensation is on tlie insurance company or fhe owner, as fhe case may be as provlded under Section 163-A. But if it is proved that (he driver is the owner of fhe motorv^ucle, in that case fhe owner could not himselfbe a redpient of compensation as fhe HabiUty to pay fh-e same ts OH him. This proposition is absolutefy clear on a readtog of Section 163-A of fhe MVA. Accordiiagty, tfcie legal representadves of the deceased who have stepped tato r" (' ("I "> the shoes of the owner of tfae motor vehicle coiild not have claimed coinpensation under Section 163-A of the MVA." 6. Since fhe deceased stepped toto the shoes of fhe owner, he wfll be treated as owner of the motorcycle for abcwe purpose. Therefore, he could not have any clatm from himseU". However, fhe Insuraace €ompany was lialrte to fulfill fhe contractual liabiHly in ftie absence of any oosnditlon avaflable on record. Leamed counsel for the appeUaiit-InsuTaiice Company has submitted that he may be gh?en opportunity to show ftie conditions, but, we are oJT the opta.Km that fhe matter be referred to fhe Tribunal for decislon a&esfa for consideration whether the Insurance Company is Mable to fulfill its part of contractual liabUity and whefher fhe owner be treated different to the deceased, who borrowed the motorcycle of fhe owner on a desire of fhe owner himseM' and was belng deputed to do some work ofthe owxieF. 7. Por fhe reasons stated hereinabove, we aUow fhe appeal m part, set-aside fhe impugned award dated 10& Augiist, 2007 and remit back fhe matter to (he Tribiinal to conduct thorougti enquiry, if required, police verification report should also be obtained and thereafter, decision ^iafl be made afi-esh. 8. Needless to mention fhat the parties shaU be allowed to amend fheir pleadings, adduce furfh.er ewldence E^gaia in i^ ^•'" ] _ L/ support of fheir pleadtags and may file ftarther docianenEts and get the documents verUied etc. Thereafter, the dedlsion shall be made by tfae Tritounal on merits. i Praveea 9. The lower Courts records sliaU be sent back forthwllfti* 10. The parties shall appear before fhe Claims Tribunal concemed on 14th June. 2011. 11. No order as to costs. Sd/- l.M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Ns