N THE HIGH COURT JUDICATURE AT BILASPUR Misc. Aopeal [Cl No. ; Suf IDF 2008 APPELLANT NSCRER f RESPONDENT No.l ELAIMANT ^' •r^*< SsS; Allianz General Insurance Co. Ltd. Branch Office - Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur, Dist. Raipur (C.G.) Versus Smt. Janki Bai, age 46 years, W/o Shri Mishri Lal Dhruv. RESP'ONDENT No.2 GI^AIMANT -cw a?'..^-':".—^'^0^- ?•-"' .-.•A"' " cS'KJ--'"' 'RESPONDENT No.3/ Owner of the Motor Cyck ^ .v^ Mishri Lal Dhruv, age 48 years, S/o Late Baliram Dhruv, Occupation - Clerk, Engineering College, Koni, Bilaspur (C.G.) Both the residents of village Majhreta, Police Station _ Pathariya, Tahsil Mungeli, Dist. Bilaspur (C.G.) 3. Nikesh Kumar, age 30 years, S/o Shri M.L.Dhruv, resident of village Achanakpur, Police Station Chakarabhata, Tahsil Bilha, Dist. Bilaspur. APPEAL U/S 173 OF THE' MOTOR VEmCLES^ACT AGAINST THE AWARD/ORDER DATED 24701/200S PASSED BY TH1T6"1 ADDITIONAL MOTOR ACCmENT CLAIMS TMBUNAL BILASEER IN PRESIDED OVER BY SHRI JAIDEEP VIJAY NIMONKAR m C.C.N0^90/2007 -^^yy" .^''^iSs. "%, /'/"^, "^ % '•S^Ssii-s^ \ HIGH COURT OF CHHATTISGARH : BILASPUR Misc. Anpeal (Cl No. 340 of 2008 APPELLANT Insurer RESPONDENTS Bajaj Allianz General Insurance Co. Ltd. VERSUS Smt. Janki Bai and others .'•; APPEAL UNDER SECTIQN 173 OF THE MOTOR VEHICLES ACT S.B.: HON'BLE SHRI N.K.AGARWAL, J. Present: Shri Abhishek Sinha with Shri Ghanshyam Patel, counsel for the appellant.^ None for respondents No.l & 2. Shri Gautam Khetrapal with Shri A.C.Sahu, counsel for respondent No.3. ORAL ORDER (Passedon24.08.2011) 1. This appeal by the BajajAIlianz General Insurance Company Limited is against the award dated 24.01.2008 passed by the 6th Additional Motor Accidents Clainis Tribunal, Bilaspur in claim case No.90/2007. 2. As against compensation of Rs.4,53,300/- claimed by the unfortunate parents of deceased - Naresh Kumar Dhruv, aged about 22years in the accident dated 19.05.2007 by filing claim application under Section 163A of the Motor Vehicles Act (henceforth 'the Act>), the learned Tribunal has awarded a total sum of Rs.3,00,000/- along with interest at the rate of 9% per annum from the date of application till its actual payment. 3.' The learned Tribunal, on a close scrutiny of the evidence led before it, held: death of deceased Naresh Kumar Dhruv had \: '^ J- h^S ^1 occurred due to use of motorcycle Hero Honda Splendor bearing No. C.G. 10 EA/0438; assessed and awarded the aforesaid amount of compensation in favour of the claimants holding the appellant/insurance company and owner of the offending vehicle motorcycle, jointly and severally liable for payment of compensation. 4. Shri Ghanshyam Patel, learned counsel appearing for the appellant would submit: deceased - Naresh Kumar Dhruv is the brother of respondent No.3, who is actual owner of the inotorcycle; deceased, being borrower of the motorcycle, cannot be held to be an employee of the owner of the motorcycle; since he was authorized to drive the said vehicle by its owner and, therefore, he would step into the shoes of the ov,'ner of the inotorcycle; the deceased, therefore, not being a third party, the claim petition its'elf was not maintainable in the eye of law and the learned Tribunal has wrongly passed the award awarding Rs.3,00,000/- as compensation against the appellant. 5. On the other hand, Shri Avinash Chand Sahu, learned counsel appearing for respondent No.3/owner would submit: in the facts and circumstances of the case, the award impugned needs no interference. 6. I have heard learned counsel for the pardes and perused the record of the Tribunal including award impugned. 7. In the instant case, indisputably, the deceased was not an employee of the owner of the vehicle in question. He borrowed the said vehicle from its real owner. The deceased cannot be held to be ^ employee of the owner of the motor vehicle although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motor vehicle. Accordingly, the claimants who are the legal representatives of the deceased who stepped into shoes of the owner of the niotorcycle could not have claimed compensation under Section 163-A of the Act and the learned Tribunal went wrong in awarding compensation to them. 8. Hon'ble the Supreme Court in case of Oriental Insurance Company Ltd. vs. Rajni Devi 2008 (5) SCC 736 has held that Section 163-A of the Motor Vehicles Act 1988 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-A of the Act. 9. Further, the Supreme Court in case of Ningam.ma and another vs. United India Insurance Company Llmited, 2009 (13) SCC-710 has observed in para 18 8s 19 as under: "18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi 8s Others (2008)5 SCC-736, wherein one of us, namely Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is <;laimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said ^~:\ to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an 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. 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 is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A ofthe MVA. fv'y 10. By applying the law laid down in the above referred dicta of Apex Court in the facts of the present case, in iny considered opinion, the learned Tribunal has erred in awarding compensation against the appellant/insurance company. The deceased borrowed the vehicle from the original owner. He would be a deemed owner of the offending vehicle. The owner could not himself be a recipient of compensation as the liability to pay compensation on him and the claimants being not third party, the \~.. '>'•' ^o application filed under Section 163-A of the Act itself is not maintainable. 11. For the reasons mentioned hereinabove, the appeal filed by the insurance company is allowed and award impugned dated 24.01.2008 is set aside. The appellant/insurance company is free to recover the amount deposited by it prior to or during pendency of the appeal from the claimants by filing execution petition before the concerned Claims Tribunal. 12. In the facts and circumstances of the case, no order as to costs. -——^_ N.K. Agrawal Judge "< \'.