^ / @ ^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH JUDICATURE AT BILASPUR Divlsion BenGtsl APPELLANTS : RESPONDANTS: w Misc. Appeal No. A J^ / 2006 1. 2. 3. ^" 4.^" ..^ SMT. INDIRA BAI KUKREJA, Age 41 years W/o. Late Dayaram Kukreja (Widow of Deceased) SMT. UTTAMBAI KUKREJA, Age 63 years ,, ^ * (Hflother of Deceased)w/<:>LA-^>^^^ ^uUJ^ KU. MANJU KUKREJA D/o. Late Dayaram Kukreja (Daughter of Deceased) BRIJESH KUKREJA S/o. Late Dayaram Kukreja (Son of Deceased) R/o. Sindh Provision Stores Main Market, Main Road DALLIRAJAHARA, DISTT. DURG (C.G.) VERSUS 1. VISHWAMBHARGOND S/o. Late Patwari Gond R/o. Village: Jhabudwah Tah.:BALOD, DISTT. DURG (C.G.) 2. THE ORIENTAL INSURANCE COMPANY LIMITED Through : Branch Manager KAMPTEE LINE, RAJNANDGAON (C.G.) 9 'H .._^_r: ^ DATE OF ACCIDENT 03.09.2003 IVIEMORANDUM OF APPEAL UNDER SECTION'173 OF THE MOTOR VEHICLES ACT 1988 ^^ HIGH COURT OF CHHAmSGARH AT BXLASPUR M.A. (Cl N0. 523 OF 2006 APPBLLANTS RBSPONDBNT8 Snit. Indira Bai Kukreja and others. Vesrsias Visliambhar Gond and anotibier, APPEAL UNDER SECTION 173 OF THE MOTOR VBHICLES ACT. 1988 Divisioia Bettch: Hoa'bie Shri I.M. Qudduisi 8& Hon»bleShri G. Minhaiuddin. JJ. Preseiit: Shri S.S. Rajput, couiisel for the appeUaate. Shri A,K< Athaley, couusel for the Respondent No.2. ORAL ORDBR (Passed on 24th day ofjune, 2011) Per I.M. Ouddusi, J, Heard. 2. This appeal has been filed against the iaipugned awaid dated 11-05-2006 passed by Second Additional Motor Accident Clauiis Tribuiial, Rajnaadgaon (for short 'flie Tribunal) iri Claioa Case No.87/2005, disirdssiag flie clalm petition of the claiiD.an.ts/ appeUaiits. fi 3. Brief facts of fhe case ai'e tiiat fhe appellants are wlle, iiiother, son aiid daughter of fhe deceased Dayaram Kukreja, On 03-09-2003, tlie deceased was going to his viUage Childilakasa by drivmg (Hero Hoada) Motor Cycle bearing registratlon No. C.G. 07-A/4309 owned by respondeiit No.l Vishanibhar Goad. On the way DaUirajhara - RajnaadgaoiL road, tiie said iiiotor cycle niet wifh an accident m. frout of Agrawal Radio, as a result ofwhich the deceased succumbed to fhe iiijuries sustaiiied ia the accident. 4. The claimkats bemg legal representative of the deceased had filed a petition under Section 163-A of tlie Motor VeNcles Act (for short 'tlie Act3) before fhe Tribunal claimmg total >• y\ coinpeiisatioii to the tune ofRs. 12,00,000/N for the death offlie deceased la tlie said accideiit. 5, The learned Tribuual on a close scrutmy of evidence led, inaterial placed aad subiiiissions niade by fhe parties, disiaissed fhe claini petitlon. 6, The deceased borrowed flie niotor cycle froiix the owner wifh his consent aad stepped mto the shoes ofthe owner. 7. We have perused the recoid of fhe Tribunal aad found tiiat the claioi petition was filed iinder Sectioa 163-A/" of the Act showiiig fhe aaaual iacoine of fhe deceased as Rs.84,000/-. In fhe Secoud Schedule ofSection 163-A offhe Motor Vehicles Act, fhe maximum mcome has been shown as Rs.40,000/-. Sectiou 163-A being a social security provision, providmg a distuict scheme as lald down by Houyble fhe Supreme Court m fhe matter of Deepal Qirlshhhesi Sonl wid others vs» United India InsurcLiwe Co-i Ltd.^ Bciradaf reported ia (2004) S SCC 38S, Orlental Inswrance Ce. Ltd. vs» Bansrqfbhai V. JSTadata and others; reported m (2001) S 8CC 175). In the coaclusion, Hon'ble the Supreme Court m fhe matter of Deepdl Girishbhed Sant's case (supra), has held iii para 67 which is quoted as under: a67. We, therefore, are of fhe opitiion fhat Kodcda has correcfly been decided. However, we do aot agree with fhe fladiags ia Kodcda that if a person iavokes provisious of Section 163-A, the aanual iacome of Rs.40,000 per aciAium shall be treated as a cap. In oiu' opinion, the proceediag under Section 163-A being a social securily pjrovisioii, priovidmg for a distuict scheme, only those whose aiinual mcome is up to Rs. 40,000 caQ. take the benefit fhereof, AU ofher claims aie required to be deteriniaed ia ternis of Chapter XII of fhe Act.x> \ 8. Further it is a case where ttie deceased borrowed fhe two wheeler froBi its owner, fherefore, he stepped iDito fhe shoes of fl^e owoer aad was representative of fhe owner of fhe vehlcle |^,;,|^;^::@g!pl ,.,,^^^^;'>- '. ,^%:'^ •^ ^ ^ ^SKSS^ 1 tliiSSP^ 1 1.,? .•%,^/ v^^" ^LP and in view of the judgmient of Hon^ble fhe Supreme Court in the matter of Oriental Inswrftftce Comfwny Zftd., »s. Rc^nMewif reported m (2008) 5 SCC 736, it has been held tiiat Sectlou 163-A of the Motor Vehicles Act, 1988 caanot be said to have aay application in regai'd to an accideiit whereiii fhe owner of fhe motor vehicle himself is mvolved, It was further held fhat the Uability u/s 163-A ofthe Act is only 011 the owner of fhe vehicle siace a persou catinot be bofb^ a claimaiit as also a A'eclpieut, the heirs of ffae deceased could iiot have niaiiitauied a claim ia ternis ofSection 163-A offlie Act. 9. Further ia case of Ningasmnei dnd anather <ys» Dyiited India Insurance Campany Limitedf rcported iii 2009 (13) SCC 710, fhe Supreiae Court whUe referriag to fhe case of OHefttal It^surcuwe Compcuzy Ltd. vs. 2?q/mde^< (supxa), held vide paras 22 & 22 as follows: ff21. In our c-onsidered opmion, tilie ratio of tlie decision in Oriental Iiisui'aace Co. Ltd. case 1s cleajiiy applicable to fhe facts of fhe preseut case. IAI flie present case, fhe deceased was not fhe owner of the motorblke ia questlon. He borrowed fhe said Biotorbike froiii its real owner. Tlie deceased caiuiot be held to be an eiaployee of fhe owner of fhe motorblke alfhough he was autiiox'ized to drive the said vehlcle by its owner aad, fhei'efore, he would step mto fhe shoes oftiie owner of fhe motorblke. We have already exfanacted Sectlon 163-A oftheMVA hei'eiiibefore. A bare perusal of fhe said provision would niake it explicitiy cleai' that pei-sons Itke the deceased in Ae present case would step iato fhe shoes of the owner of the vehicle. 22. In a case wherem flie victim died or wherc he was periiianentiy disabled due to an accideiit arismg out of the aforesaid motor vehicle m tliat eveut fhe liability to make payiaent of fhe compensatioii is on the Insurance Compaiiy or fhe owner, as fbe case Biay be, as provided under ^ ^\ Section 1G3-A of the Act. But j£it is proved that tihie driver is the owner of the niotor vehicle, 111 that case fhe owner could iiot luaiself be a recipient of coiiipeiisation as the Uabllity to pay fhe saaie is on him. Aecoixliagly, the legal representatives of fhe deceased who have stepped into fhe shoes of the owner of fhe ixiotor vehicle could not have clakaed compeiisatioAi iinder Section 163-A ofthe MVA." 10. Adniittedly, ui fhe present ease fhe deeeased was driviag a motorcycle which was borrowed from its real owiier iiamely Vishaiiibhar Gond/Respoadeiit No,l and met with aa accident witiiout involviag any other vehicle. Siiice flie deceased had stepped mto fhe slioes of owner of the vehicle, Section 163-A of fhe Act cannot apply whereia owner of the veliicle is iiivolyed. Hence the legal represeiitatives of fhe deceased could aot have claimed coiapensation u/s 163-A. Iii view of the above discussion, the c-1aii2i petitloii itselfwas not mamtaltiable aad henee no io.terference 1s required ia the awai'd ioipugned dated 11-05-2006 passed by the Tribunal. 11. Therefore, fhe appeal faUs aad is liereby disimssed. No order as to costs. Sd/- I.M. Quddusi Judge Sd/- G. Minhajuddin Judge Kw