®^ ];,.;^; [SSl'S!'! °?•> ^M JUuJi IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M .A. (C^No.- ^c)3/6<5 APPELLANT ^,'?. q'HE ORIENTAL INSURANCE COMPANY LIMITED, THROUGH DIVISIONAL MANAGER, DIVISION N0.- 1, THE OR1ENTAL INSURANCE COMPANY LIMITED, JAIL ROAD, RAIPUR, TAHSIL & DISTRICT - RAIPUR C.G. (INSURER OF MOTOR CYCLE N0. C.G.- 04 C.K. 3746 ) Vrs. ^ESPONDENTS/CLAIMANTS SMT. POOJA SINGH WIDOW OF LATE- SURENDRA SINGH THAKUR, AGE 35 / YRS. 2. ^ 3.. /• AVINASH SINGH S/0 LATE SURENDRA SINGH THAKUR, AGE 14 YRS. ADITYA SINGH S/0 LATE SURENDRA SINGH THAKUR, AGE 09 YRS. FOR MINOR RESPONDENT N0.- 2 & 3 AS GUARDIAN MOTHER POOJA SINGH THAKUR, RESIDENT OF NEW KHURSHIPAR (NEAR TO GURUDWARA) BHILAI, THANA- CHHAWANI,DISTRICT - DURG (C.G.) RESPONDENTS/NON-APPLICANTS :- ^~ 4.^- VISHNU PRIYA ISPAT PRIVATE LIMITED, RESIDENT OF - 20, SONA TOWER, AGRASEN CHOWK RAIPUR, TAHSIL & DISTRICT - RAIPUR (C.G.) «ae (OWNER OF MOTOR CYCLE N0. C.G.- 04 C.K. 3746 ) APPEAL UNDER SECTION 173 OF MOTOR VEHICf.E ACT 1988 ^ \ HlcH CQURTOF CWATTLaGARH AJ BILASPUR DIVISION BENCH; HON'BLE MR. I.M.QUD&U5I A HON'BLE MR. PRASHANT KUAAAR AAJSHRA. JJ [.A. m No.693/2001 Appellant Vs iaSDondents The Or'ien+al Insursnce C'o- Ltd. Smt. Pooja Singh A o+hers rresen AA". Sudhir Agarwal, Advoca+e for +he appall Oi (5th January, 2011) f AA Q' irlf^! i^ i .T • l\fli»t.*3i, y .. 2. The •• appellsi'it-Insuranca Compsny has preferrad This miscellcsneous-appeai unde" Sectian 173 of the A?ioto" Vehicles Act, 1988 (for ghort 'the Act') against -t+ie i.mpugned award dated 04.2.2008 passed by ths learrsed Chisf AAotor' Accident Clsims Tr'lbunal, Raipur (C6) (for short '+he Tribunal') in Claim C'aae No.03/2007 awarding a eon'pensation of Rs.8,88.662/'- to +he c!s! .an+s snd fcs+ening iisbilit-/ on the appellsnt-Insunance Company to fiatisfy tha award. 3. Facts of the ca.se., 'm brief, are thst the ciaifflants, who s"e widov.' and childr'en of decsassd Surendr'a Singh, have filed a claim peti+ion before the Tribursa! unde" Section 166 of /sAotor Vehiclas Act, 1988, fieeking compensation of Rfi-38,40,000/- fo" •t+ie death of deceasei Surendra Singh stating thar-ein that -rtie dscease.d vws going o" his motorcycle bearing ragistrs+ion nunibe" C604-CK-3746, a!l of sudden tha tyr'e of the said n'otor'cycie was burst dus to 'A'hich the decesfiad \: 1 ::s>n'. ^ ^ ^ // '" ^. .rf"^^. % v<^^' ,^ <8tB!ass«I> •V r?<i> A lost control of the mo+orcy'cle snd dsshad u.'it'n cn unknown tnictor'. In the said accident, said Surend-a Singh sufi+ained grievous and fatal injuries and remained in con'.a up+o 06.11.2006 and ultimately a'ied on 21.12.2006. Ma+ter- was reported to the Police Station Khamtarai, District Raipur. The claimants/r'espondent No.l to 3 have claimed compansation on the gr'ound •rtiat they were dependant o", ths deceased, who waa the scle earning membar in famiiy, and due to his death, 1+iay have suffered loss of income. Non-applican+s No-1 & 2 hove filed thsir- separate written statement and denied the claim of the ciaimants. 5. • The Tribuns!, af+er hearing ths parties in the "netts" QRd considering ths mGtsr'ial avai!ab!e o" "acora, at'owed the claim petitiori of the ciaimants ond swarded a sum of Rs.8,88,662/- as compensa+ion. 6. Vi/'e have hea"d !earnsd counsel for the partias and per-used the records of ths Tribunal ss also the findingfi givan in the impugned aword. 7. The clsimants have preferred sppV.cat'mn under Section 166 of t'ne Act, 1988 howeve" f"om the fina'ings r-ecor-ded by tiie Tribuna! it wouid afipe.ar that deceased Surandre Singh wns himself tiriving the concerned rno+o"cyc!a, however the accident took p'aca not on account of £iny ng^ligance of tlis drivsr of ths offsndin^ unkno^jn tracto^ but the accident took p'oce bscsuse the fr'ont whes! ty"e of the motorcycle suddenly got burst ond it bacame uncontrollsd ond ot the same time it got c'ashed against *he ursknown tractor' which wss coming from behind. F"om -Hie^statement of AV//2 Jaadish Prasad Dhruv it has been found to be established thot +he accident has not takan place because of the negligBnce of tractor d"iva" but it hafi taken place on account of bursting of +y"e of the front whes' of the motorcycie. The TribunqJ \; Ifi",. 1 ^'"•^.^ -'""•'^. ^y 5 ^ has neither framed arty issue regarding negligence isrhi'ch is necesgsry in a cisim petitior! undar Section 166 of the AAoto" Vehicles Act. Thue. m the absence of ariy ififiue regarding negligence having been framad aa aiso in the absenee cf any findinq with r'aaard to neqligence. the award passed on ai cppticatioi". undsr Section 166 of the Motor V/ehicles Act oppears To De erronsous. . 8. Even csthsnwse, had i+ been a pr'oved csss of negligenca by the driver of the trac+or, !t is to be. se.en that the d"iver, owner ani insurer of ths tractor have no+ bee" arraved because tha trac+o" was unknown, and for this reason aiso the c!aim petition unde" Section 166 of the Motor' Vehicles Act as against the ownsr of the •riotorcycie i.e. the reSDondent No. 4 was not main+ainable as +he deceased hiniself was 9. Since the Tnbunal has passed an award in fovour' of tha claimsnts and' this is an appecl by Tnsurance Company, this Cour't deems it pr'oper' to coysidef cn al+e"native case as to whe+har' in the pro'/ad facTfi of the case the cl-aim petition can be trsated unde" Sec+ion 163-A of the AAoto" Vehicles Act and grant compangQtion accordingly. haweve" frorn the findings r'ecorded in the parsgraph 25 cs~id 26 it woyid appscir" that the Tribunal has assessed ths yeo.F'ly income at Rs.66,000/'- j.e. mors than Rs.3,000/'- per monti" equa! to Re.36,000/- per annum and for this reaso", also the clairn petition unds" Ssc+ion 163-A of the A'lotor Vehic'es Act was not maintainabla as tiie mcoms of the dsceased v-'flS mo"e than Rs. 36.000/-. 10- In the prssent case i+ is an Qdmit+ed fact that the mo+orcycle did not belona to the a'ecesfied and the deceased had bor'rowea the same fforn 'i+s owner i.s. respondent ?'>)o.4 herein, for doing his Qwn wor'k Y \: :"!^. <• '• ^:'. - W '^!. ••-SCT,^-^ l^ ^ ^s and not tha work of the owner and as such, the deceased steppad into ths shoes of +he owner. 11. In tha matts" of Oriental Insurance Company Ltd. Vs. Rajni Devi reported in (2008) 5 SCC 736 tha Hon'bte Supreme Couri- has he!d that Section 1&3-A of +he Motor Vehic!ss Act, 1988 cannot be said +o have any applica+ion in regard to an accident wherein tha owier of tha motor vehicie himself is invotvad. I+ wns furthe" he!d that-rfie liabili+y under Section 163-A of •ti"e Act is only on the ownar of ti"a vshicle sinca a person cannot be bo+h,a claima"t as a!go a recipient, the heirs of the decaased could not have maintained a claim in terms of Section 163-A of the Act. 12. The Hon'ble Supreme Court in Para-21 & 22 of the judgmant delivered in the matter of Ningamma A anol+i.er V/s. Uni+ed India Insursnce Company Limited reported in (2009) 13 SCC 710 has held thus;- "21. In our considered opinion, the ratio of the declsion in OrienTal Insurancs Co. Ltd, case is clearty applicable to the fac+3 of ths prssent case. In the prssent ccxss, the deceased was not the owner of the motorbike in ques+ion. h'e borrowed the said motorbske from Its real owner. The deceased cannot be held to be a"! employes of the owner of the moTorblke aithough he was auThorized To drive the said vehicie by its owner and, therefore, he would step into the shoas of the owner of the motorbike. We ho.ve already extracted 5ection 163-A of The AA.VA hereinbefore. A bare perusul of tfie said provision would make it explicitly clear that parsons like the deceased in The present case wou'd step inTo The shoes of The owner of -rtie vehicle. 22. In s case wherein the victim died oi' where he was permanently dlsabled due to an accident arising out of the afcrgsaid motor vehicte in that event the liability to make payment of ths comperssation is on the insunince owner, as the case may be as provide< \: i :,.r^-'. •-^•;"^.: 5 Section 163-A. But if it is Dfovsd thst tha cirive" is the owner of the motor vehicle, in tho.t case the owner could not himself be a recipient of compensation as the liabiliTy To pay The same Is on him. Thls proposiTion Is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the lagal representa+ives of the who have stepped into The shoes of the owner of ttie motor vehicie could not ho.ve. claimed compensation under Sac+ion 163-A of 1ne MVA." 13. Thus, in view of the settled position of law, we are of the opinion thQT ths clcimants, who are legnt reprasantativas of the dsceafied u.'ho have steppsd into the shoes of the owner of the motor cycie in question, couid not have claimed compensstion. 14. In the rssult, the appaa! succseds and the award dated )4.2-2008 passed by 1+ia Tribunal in CSaim Case No.03/2007 is her-eby set asids. If ony amount of companSQtion is depositsd by the appellant with the Tribunal and the same has been wi+hdrawn by the claimants, then the same would bs recovsr-able by the appe!!an+-InsurGnce Company. 15. Mowever, it is made clea" that though tha respondsn+s/claimants but this o"der wil! not aebar 1t!em Section 163 of the Act i.e. scheme for payinent of compensationin case of hit and r'un moto" accidents. are not "eprsssnted dsspita service ve an ODDlication under 16. Certified copy as per rules. SA'- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge \;