"^^ /y^'" ^'.^^. M 1 ^.""n ^J&BB< HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C). No. 420 of 2008 Appellants Claimants Respondents Non-claimants 1. Hemkanta Yadu, w/o late Dulesh Kumar Yadu, aged about 38 years, 2. Daduram Yadu, s/o late Shobharam Yadu, aged 65 years, 3. Kanti Bai w/o Dadu Ram Yadu aged 58 years. 4. Ku. Leena d/o late Dulesh Kumar Yadu, aged 11 years, 5. Indra Kumar s/o late Dulesh Kumar Yadu, aged 9 years, (Appellant No. 4 to 5 are minor through their natural guardian Smt. Hemkanta Yadu, w/o late Dulesh Kumar Yadu) All appellant no. 1 to 5 are r/o. village Sanjare, P.S. Dondilohara district Durg C.G. VERSUS 1. Rupesh Kumar Yadu s/o. Tekram yadu, r/o Village and post Marra Tahsil Patan, district Durg C.G. 2. The New India Insurance Company Limited, Thakkar Chambers, in front of Project Auto Mobiles, G.E. Road, Power House Bhilai, district Durg, C.G. MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT.1988. ^y^^^> ^^y%. I ":'-1 J t., ^' ^ Present: Shri Indrasen Sahu , learned counsel for the appellants. Shri Shailendra Sharma, learned counsel for respondent No.2. ORDER (10th May, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Shailendra Sharma, learned counsel for respondent No.2 placing reliance on the dictum of the Apex Couri: in the case of Ningamma and Another vs. United India Insurance Company Limited, reported in AIR 2009 SC 3056 has raised a preliminary objection about the maintainability of the claim petition filed by the claimants under Section 163-A of the Motor Vehicles Act as the deceased himself was driving the motorcycle at the time of the accident after borrowing it from the owner of the Motorcycle. 2) Shri Indrasen Sahu, learned counsel for the appellants, in view of the above preliminary objection and the dictum of the Apex Court in the case of Ningamma and Another vs. United India Insurance Company Limited (supra) holding that the claim petition under Section 163-A of the Motor Vehicles Act in the above fact situation is not maintainable, seeks permission to withdraw the appeal filed by the appellants/ claimants for enhancement of the compensation awarded by the Additional -^- e y- ...^ Motor Accident Claims Tribunal, Balod, district Durg, vide award dated 31.12.2007, passed in Claim Case No.70/2007. 3) Permission granted. 4) The appeal, therefore, is dismissed as withdrawn. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge nlmmi