^- IN THE HIGH COURT OF 3UDICATURE, AT BILASPUR M.A. No. t^^ /2004 APPELLANTS ^CLAIMENTS / ...^ ^y. d°ZJ'<V- \v -^ ^ M p* ^ \^ RESPONDENTS 1. Smt. Savitri Sharma, aged about / 42 years, Widow of Jagdish Chandra Sharma, Profession - Housewife. r. Kumari Neetu Sharma, aged about 19 years, D/o. the deceased Jagdish Chandra Sharma. 3. Kumari Dharani Sharma, aged / about 14 years, D/o. the deceased Jagdish Chandra Sharma. [The appellant no.3 is the minor daughterM'the deceased]. Through ^the guardian i.e. the mother the appellant no.l. Atl the 3 appellat^ts are resident of Plot No.56, ..Kashiram Nagar, P.0. Ravigram,,'; Raipur, Tahsil & Dist. Raipur (C.G.). VERSUS 1. B.K.Baghel, S/o. C.D.Baghel, R/o. ^ 3/35/G, Risali Sector, Bhilai, Dist. Durg (C.G.) 2. The Oriental Insurance Company Ltd., Malviya Nagar, Durg (C.G.) «.- Through Divisional Manager, "?- Divisional Office No.l, Kachahari Chowk/Jail Road, Raipur (C.G.) MISCELLANEOUS APPEAL U/^173 OF THE MOTOR VEHICLE ACT 1988. ^" ^l Against award dated 10.05.2004 passed by the 4m Upper Motor Accidental claims Tribunal, Raipur (C.G.) in claim case no. 136/2002. ? ;,. -^SSTC-R^iw^'"''' HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri I.M. Quddusi, J. & Hon'bJe Shn Prashant Kunnar Mishra, J. APPELLANTS RESPONDENTS M.A.NO. 1038 of 2004 Smt. Savitri Sharma and others. Versus B.K. Baghel and another. Appearance: Ms. Somshukla Sarkar and Shri Aman Kosharwani, counsel for tho appellants. Shri P. Dutta. counsel for respondent No.2. ORAL ORDER (21/02/2011) Following oral order of I. M. Quddusi. J. the Court was passed by Thjs appeal has been filed by the claimants against the award dated 10/05/2004 passed by IV Additjonai Motor Accident Claims Tribunal. Raipur (C.G.) jn Claim Case No. 136/2CX)2 dismjssing the clajm of the appellants. (2) The brief facts of the case are that on 11/11/2000 Jjtendra Kumar Sharma was going from Mohbabazar to Tatibandh on Hero Honda motorcyde bearing regjstration No. M.P.24 E.A. 1611. when he reached in front of Mahamaya RoJling Mill the wheet of motorcycle slipped all of a sudden due to whjch Jjtendra Sharma recetved grievous injuries. He was admitted to the Medicat College. Rajpur where on 12/11/2000 he died. Deceased Jitendra Kumar Sharma was aged about 22 years and working as Salesman. He used to earn Rs.3000/- per month. Ciaimants have claimedcompensation of Rs.6,48.000/-. ^,^-^^^, 1 '^'LJ/ ^ ^sf^/- '^^^ @ --2. (3) The Claims Tribunal after consjdering the material on record and the arguments advanced by learned counsel for the respective parties; dismissed the claim petition. (4) The Tribuna! has decided issue No. 1 against the cjaimants to hold that deceased Jitendra Kumar Sharma was not an employee of respondent No.l/non-daimant No.1 Shri B.K. Baghel and as such he was not driving the motorcycle at the instance of or for any work of the owner of the motorcycle. He has borrowed the vehicle belonging to B.K. Baghei and therefore he stepped into the shoes of the owner. The Tribunat has further held that the application under Section 163-A ofthe IVIotor Vehicles Act. 1988 was not maintainable. However, liberty has been reserved in favour ofthe claimants to move application underthe hit and run scheme, if applicable in the facts of the case. (5) Hon'ble the Supreme Court in case of Orienta! Insurance Company Ltd. Vs. Rajnidevi; reported in (2008) 5 SCO 73S has held that section 163-A of the Motor Vehicle Act 1988 cannot be said to have any appjication in regard to an accident wherein the owner of the motor vehicle himsejf is jnvoived. It was further held that the Ijability 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 redpjent, the heirs ofthe deceased could not have maintained a claim in terms of Section 163-A of the Act. (6) Further in case of Ningamma & another Vs. United IndJa Insurance Company Limited reported in (2009) 13 SCC 710 the Supreme Court while referring to the case of Oriental Insurance Company Ud. Vs. Rajnjdevi (supra), held vide paras 21 and 22 as follows::- "21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is dearly applicable to the ^ ^^y ^-^S^i^^^ -5- 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 an employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner and, therefore, he wouid step into the shoes oftho owner ofthe motorbiko. Wo have alroady extracted Section 163-A of the MVA herelnbefore. A bare perusal of the said provision would make it explicitly ciear that persons like the deceased in the preseni caso would step into the shoes of the owner of the vehicle. 22. In a case whereln the victim died or where he was permanently disabled due to an accjdent 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 js the owner of the motor vehicle, in that case the owner could not himiself be a reclpient of compensation as the liabiiity to pay the same is on him. This proposition is absolutely ctear on a reading of S©ction 163-A of tho 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." (7) Admittedly, in the present case the deceased was driving a motorcycle which was borrowed from its real owner namely B.K. Baghel/respondent No.1 and met with an accident without invoMng any other vehicie. Sjnce the deceased had stepped into shoes of owner of the vehicle, Section 163-A of the Act cannot apply wherein ownerof the vehicle is involved. Hence the legal representatives of the deceased could not have claimed compensation under Section 163-A. In view of the above discussion. we are not Jndined to interfere with the impugned award dated 10/05/2004 passed bythe Tribunal. (8) In the result, the appeal is dismissed. No orcjer as to costs. Sd/- LM-Quddusi | Judge Sd//- prashantKumarMishra Judge ^