c'f- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. fC) N0. J^ /2008 APPELLANT i-ADplJcant No. 2 •'^ .^.:^ 2GCMt^. f ^»^&^ "The New India Assurance Company Pvt. Ltd. Through - DTvisional Manager, Bilaspur, office Rama Trade Centre in-front of Rajeev Plaza bus stand, Bilaspur, Tahsil & Distt. Bilaspur (C.G.) VERSUS RESPONDENTS ;laimants 'H- 1. ?- 2. 3. h>- •/ Smt. Pushpa Lata Bai Wd/o Late Ramesh Das Manikpuri, aged about 25 years. Vishal Das, S/o Late Ramesh Das Manikpuri, aged about 3 years. Ku. Khushi, D/o Late Ramesh Das Manikpuri, aged about 2 years. No. 2 & 3 minor through natural guardian mother Smt. Pushpa lata Bai Wd/o Ramesh Das Manikpuri. All resident of Village - Bodsara, P.0. Hirrimines, P.S. Hirri, Tahsil Takhatpur, Distt. Bilaspur (C.G.) "7.'^''^'! :~.::ssis,-c—^~- .^f <D Non-ADDlicant No. 1 t ^ Non-Applicant No. 3 Non.^ApDlicant No. 4 rry 4 4. Khelawan Das Manikpuri, ^ .6. ; S/o Sundar Das Manikpur, f aged about 27 years, R/o Village - Bodsara, P.0. Hirri mines, P.S. Hirri/ Tahsil - Takhatpur, Distt. Bilaspur (C.G.) (Registered owner of Hero Honda C.G.-10/ZK-0119) Smt. Ramkunwar, W/o Sundar Das Manikpuri, aged about 6Q years, R/o Village- Bodsara, P.0. Himmines, P.S. Hirri, Tahsil Takhatpur, Distt. Bilaspur (C.G.) Sundar Das Mankipuri, S/o Late Bishun Das Manikpuri, aged about 65 years, R/o Village - Bodsara, P.0. Hirrimines, P.S. Hirri, Tahsil- Takhatpur, Distt. Bilaspur (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT ¥^^^S^L ^',^ T ^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.) No.1694 of 2008 Appellant versus Respondents The New India Assurance Company Pvt. Ltd. Smt. Pushpa Lata Bai and others Present: Shri A.K.Athaley, counsel for the appellant. Shri Ramakant Pandey,counsel for respondents No.1 to 3. None for other respondents. Miscellaneous Appeal under Section 173 ofthe Motor Vehicles Act ORAL ORDER (Passed on 1st February, 2011) Per 1.M. Quddusi, J.: Heard. 2. This appeal has been filed by the insurance company challenging the award dated 19-11-2008 passed by the 1st Additional Motor Accidents Claims Tribunal, Bilaspur in Claim C.ase No.42/2008. 3. Brief facts of the case are that on the date of accident, i.e., on 14-10-2007, deceased Rameshdas Manikpuri was going from Hirri Mines to his Village Bodsara driving motor cycle Hero Honda Splendor bearing registration No.CG 10 ZK 0119. When the deceased was driving the motor cycle near Khalsa Dhaba at Jhalpha turning, an unknown vehicle, which was being driven rashly and negligently, dashed the motor cycle. Due to the accident, the --—:^^. ^ /.i ^/--^r \:'ssy -^^^' deceased sustained serious injuries on his person, as a result of which, he died. The claimants, i.e., wife, son and daughterof the deceased preferred aclaim petition under Section 163-A of the Motor Vehicles Act, 1988 (henceforth 'the Act') claiming compensation of Rs.4,09,500/-. 4 . The Claims Tribunal has allowed the claim petition and awarded a sum of Rs.4,17,500/- in favour of the claimants holding liability on the non-claimants No.1 and 2 to satisfy the award jointly or severally. 5. The deceased was driving the motor cycle borrowing from his brother non-claimant No.1. The motor cycle belonged to non- claimant No.1, therefore, the deceased stepped into the shoes ofthe owner. But, the question is the deceased was not having a valid and effective driving licence as nobody disclosed the driving licence. Though it is correct that the burden of proof lies upon the insurance company in thjs regard yet when it is not known as to from which Regional Transport Authority the driving licence was issued, it was not possible for the insurance company to summon all the Regional Transport Authorities to prove that the deceasedwas not having a valid and effective driving licence. The insurance company had also moved an application before the Claims Tribunal under Order 11 Rule 12 read with Section 151 ofthe Code ofCivil Procedure stating that the claimants have knowledge about the driving licence of the deceased and the original driving licence or xerox copy thereof be directed to be produced on oath. The claimant No.1 the widow of the deceased has filed reply to the application under Order 11 Rule '^^. ISB^^^' 12 read with Section 151of the Code of Civil Procedure stating therein that she made searches in the house but she could not get the driving licence. In her statement, she has stated that she has seen the driving licence of the deceased so many times in his front pocket of the shirt and the deceased used to apprise her about the fact that the same was his driving licence, but the same was not available. It is also not known as to from which Regional Transport Authority the driving licence was issued and, therefore, it was not possible for the insurance company to summon the Regional Transport Authority. 6. In view of the above, the insurance company is liable to be exonerated from its liability to satisfy the impugned award. 7. More so, Hon'ble the Supreme Court in Oriental Insurance Company Limited vs. Rajni Devi and others, (2008) 5 SCC 736, has held that Section 163-A of the Act cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. It was further held that the liability under Section 163-A of the Act is only on the owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of the deceased could not have maintained a claim in terms of Section 163-AoftheAct. 8. Undisputedly, the deceased was not the owner of the motor cycle. He borrowed the motor cycle from its real owner. He cannot be held to be an employee of the owner of the motor cycle although he was authorized to drive the motor cycle by its owner and, •^ therefore, he would step into the shoes of the owner of the motor cycle. 9. In a case wherein the victim died or where he was permanently disabled due to the accident arising out of the aforesaid motor vehicle, in that event, the liability to make payment of the compensation is on the insurance company or the owner, as the case may be, as provided under Section 163-A of the Act. But, if it is proved that the driver is the owner of the motor vehicle, in that case, the owner could not himself be a recipient of compensation as the liability to pay the same would be on him, as held by Hon'ble the Supreme Court in Ningamma and another vs. United India Insurance Company Limited, (2009) 13 SCC 710. 10. In the result, we allow the instant miscellaneous appeal preferred by the insurance company and set aside the impugned award. However, we give liberty to the claimants to approach the Collector concerned under Section 163 of the Motor Vehicles Act, 1988. Gopal Sd/- l.M-Quddusi Judge Sd/- Prashant Kumar Mishra Judge