3 .! . «k< ^•.;::^:*i:i <i'FCS)^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR fCHHATTISGARHI Misc.Appeal No. ) / ^ QF 2004 Ti^S_ B B ?!i.^lt^^ !:^. . ._„-:-, Wi$ii;AS3 ..'S.^.dji. &PPELLANT 4NSURANCE /T RESPQNDENTS C&AIMANTS /' ^£?....L^- ^,B<:3BS"<B^'"'"V ] ^ !^£s5S3S^ te! !a^-.r-^--^"^"""" ;ated-—p—',">"y / >. ^United India Insurance Company Limited, Branch Office, Stadium Road, T.P. Nagar, Korba (C.G.). V_E^R^SU_S 1. Shakuntala Soni widow of late Om «^-Prakash Soni, aged 30 years. 2. Ku. Shradha Soni d/o late Om '<?'" Prakash Soni, aged 4 years. 3. Nenkumar s/o late Om Prakash f^'Soni, aged 21/2 years. (Both respondents no.2 and 3 minor through their natural guardian mother Smt. Shakuntala Soni widow of/late Om Prakash Soni) Kashi 4. Ayodhya Prasad s/o Prasad Soni, aged 70 years. OWNER (All r/o Village-Temar, Police Station & Tehsil-Sakti, District Janieu" Champa (C.G.). -5. Surit Chandra s/o L.B. Chandra, aged 35 years, Advocate by profession, r/o Jhulakdam Road, Sakti, District Janjgtr Champa (CG). APPEAL U/S 173 OF MOTOR VEHICLES ACT, AGAINST THE AWARDYORDER_DATED 23^72004_PASSED_BY THE_^DITIQNAL MOTQR^ ACCIDENT _CLAIMS _TRIBUNAL^ SAKTI _IN_ CLAIM_CASE N0.7,^004, "L- u "^..^L II '"^i %3safy'/<^ .sSiil^' y^^' "s. ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeai No. 1135 of 2004 United !ndia Insurance Company Limited Versus Shakuntala Soni & Others APPEAL UNDER SECTION 173 OF THE IV10TOR VEHICLES ACT DB: Hon'ble Shri Justice I.W. Quddusi S Hon'ble Shri Justice N. K. Aoarwal. •resent : Shri Abhishek Sinha, Advocate for the appellant; Shri JA Lohani, Advocate for respondent No. 1 to 4. 2^ (Passed on S9.11.2010) The instant appeal has been preferred by the appellant against the order dated 23-08.2004, passed by the Additlonal Motor Accident Claims Tribuna!, Sakti (for short 'the Tribunal') in clalm case No. 7/04, awarding compensation of Rs. 5,83,000/- in favour of the claimants and as against the appeliant/insurance company and the owner of vehicle i.e. respondent No. 5 jointly and severally. Brief facts of the.case according to the appeliant are that, on 03.11.2003,'Omprakash Soni' (since deceased) while going towards Bilaspur from Sakti along with respondent No. 5 <sitting as a pillion rider)/owner of the Hero Honda motorcycie bearing registration No. CG-12-B-0852, near Bandwa tank, met with an accident while savlna the cows and fel.l down in a mud ~\,. /. ^4 as a result of which Omprakash succumbed to the injuries sustained in the said accident. 3. The claimants preferred an application before the Tribunal under Section 163-A" of the Motor Vehicles Act, ctaimlng compensation to the tune of Rs. 42,80,000/- for the death of deceased in the said accident. 4. The Tribuna!, on a close scrutiny of evidence led, materiat placed and submissions made by the parties, awarded a sum of 5,83,000/- in favour of the c!aimants and as against the appellant and owner jointly and severally along with interest 7 percent per annum from the date of application till its payment. 5. Learned counsel appearing for the appellant would contend that the claim has been preferred by the legal representatives of the deceased under Section 163-A of the Act. The deceased was drivlng motorcycle and its real owner was ateo sitting in the said vehicle. Therefore, the deceased, not being a third party, the claim petition itself was not maintainable in the eye of law and the learned Tribunal has wrongty passed the award awarding Rs. 5,83,000/- as compensation against the appellant. 6. We have heard the learned counsel for the parties and also perused the records offlie Tribunal. 7. Chapter XI of the Motor Vehicles Act, 1988 deais with the motor vehicle against third party risks. By Section 146 of the Act, it was made necessary for the user of a motor vehicle in ^7 »;':' ,|]{j| ••tjBi 8. public p!ace to have a policy of insurance against third party risks. Section 147 describes the requirements of polici'es and limits of liability of such statutory policies. Section 149 mandates the insurers to'satisfyjudgment and awards against persons insured in respect of third party risks. Section 1 63-A provides special provision as to payment of compensation on structured formula basis. Section 165 empowers the State Government to constitute one or more K4otor Accident Claims Tribunais to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles or damages to any property of a third party so arising or both. A brief analysis of the above provisions would reveal that the claims Tribunals have been constituted for the purpose of adjudicating upon the claims for compensation in respect of accident involving the death of or bodily injury to a third party arising out of the use of the motor vehicle. Hon'ble the Supreme Court in case of Oriental Inswance Company Ltd. vs. Rajni Devi; reported in (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. !t was Turther held that the irability under Section 163-A of the Act is onty on the owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of the deceased 7 t2.8 1U'I: ;.....^^. could not have maintained a daim in terms of Section 163-A of the Act. 9. Undisputedly, the deceased was not the owner of the motorcycle in question. - The real owner of the vehicle was also sittlng In the vehicle as pillion rider. The deceased cannot be held to be an employee of the owner of the motorcycle although he was authorized to drive the said vehicie by its owner and, therefore, he would step into the shoes of the owner of the motorcvcle. 10. 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 tnsurance 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 on him as held by Hon'ble the Supreme Court in case of Ningamma and anotheFvs. Unitedlndia Inswance CQmpany U.mltss/. 11. Accordingly, the claimants who are the legal representatives of the deceased have stepped into shoes of the o'wner of the motorcyele could not have claimed compensation under Section 163-A of the Act'-and the learned Tribuna! went wrong in awarding compensation to them. 12. At this stage, we have perused the policy of insurance filed by the appellant/lnsurance Company. Under the policy, the 20i»(13)SCC-710 2°j •!-!ISi appellant had undertaken the risk of owner-driver of the vehicle to the extent of Rs.1,00,000/- by taking a premium of Rs.50/- therefor. 13. Although Section 147 of the Act does not require an Insurance Company to assume risk for the death of or bodily injury to the owner of the vehicle but the appellant/lnsurance Company has assumed the risk of owner by entering into the special contract with the owner of the vehicle by charging additional premium of Rs.50/- therefor and, therefore, the appeliant/lnsurance Company certainly owe a liabi!ity towards legal representatives of the deceased owner to the extent of Rs.1,00,000/-. We held accordingly. 14. For the foregoing, the appeal is allowed in part. The award is modified to the extent that the appeliant/lnsurance Company is liable for payment of compensation to the claimants to the extent of Rs.1,00;000/-. The above amount of compensation shall carry interest @ 7% per annum from the date of application. The appellant/lnsurance Company is granted three months' time for payment ofabove compensation. Sd/- I.M.Quddusi Sd/- N.K. Agrawal Judge •y