IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 1200 of 2008 Date of Decision : May 20, 2010 United India Insurance Company Limited ....Appellant Versus Angrej Singh and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Ms. Sonal Datta, Advocate for Mr. V.M.Gupta, Advocate for the appellant. Mr. B.S.Mittal, Advocate for respondent No.1. None for respondent No.2. T.P.S. MANN, J.(Oral) Against the impugned award passed by Motor Accidents Claims Tribunal, Fast Track Court, Sirsa, the Insurance Company has filed the present appeal with a prayer that the said award be set aside qua the Insurance Company whereas the claimant has filed F.A.O. No. 3759 of 2008 wherein he has prayed for enhancement of the amount of compensation. Accordingly, both the appeals are being decided together. In his claim-petition filed under Section 163-A of the Motor Vehicles Act, claimant-Angrej Singh prayed for grant of compensation of Rs.8,00,000/- alongwith interest @ 18% per annum on account of the FAO No. 1200 of 2008 -2- injuries and permanent disability sustained by him in a motor vehicular accident arising out of use of scooter No. HR-25A-6305. According to him, he alongwith his brother Devender Singh was going on the aforementioned scooter from Mandi Dabwali towards his village Alikan. When they reached near Shergarh, their scooter struck a car. A case bearing FIR No.230 dated 5.11.2004 was registered at Police Station City, Dabwali in respect of the accident. According to the claimant, he sustained serious and grievous injuries in the accident. His monthly income was not more than Rs.4,000/-. He remained admitted in several hospitals and spent more than Rs.1,50,000/- on his treatment. Despite the same, he required further treatment. The aforementioned scooter, which the claimant and his brother Devender Singh were riding on the day of accident, was owned by their brother Jitender Singh and insured with United India Insurance Company. Accordingly, Jitender Singh was arraigned as respondent No.1 while Insurance Company as respondent No.2 in the claim petition. Upon notice, respondent No.1 was proceeded against ex parte. However, respondent No.2 filed the written statement wherein apart from taking preliminary objections regarding maintainability, cause of action, suppression of truth and material facts, petition being vague, incomplete and insufficient pleadings etc., it was alleged that the accident took place due to rash and negligent driving on the part of the driver of Fiat car bearing registration No.DDU-6212. However, the said FAO No. 1200 of 2008 -3- car was not insured and for that reason the claim-petition had been filed under Section 163-A of the Motor Vehicles Act so as to claim compensation for the injuries received by the claimant on account of use of a motor vehicle. After hearing learned counsel for the parties and going through the records, learned Tribunal held that the accident in question had taken place due to use of scooter bearing No. HR-25A/6305. Although the claim was sought on the basis of no fault liability but even if the driver of the car was facing criminal proceedings, it made no difference. Accordingly, the Tribunal awarded an amount of Rs.1,64,700/- to the claimant as compensation against the respondents jointly and severally alongwith interest @ 7% per annum. Admittedly, the scooter bearing registration No. HR-25A- 6305 which was being used by the claimant and his brother for going from Mandi Dabwali towards their village Alikan, was owned by their brother Jitender Singh. For that reason, he filed the claim-petition under Section 163-A of the Motor Vehicles Act by impleading his brother Jitender Singh as respondent No.1 and United India Insurance Company Limited, the insurer of the scooter belonging to Jitender Singh, as respondent No.2. It has been held by the Hon'ble Supreme Court in Ningamma & Anr. V United India Insurance Co. Ltd 2009(3) RCR FAO No. 1200 of 2008 -4- (Civil) 435, that where the borrower of a vehicle died in the accident, his legal heirs were not entitled to claim compensation under Section 163- A of the Act as borrower would be considered owner of the vehicle. The relevant observations made by the Hon'ble Supreme Court are as follows:- “In the case of Oriental Insurance Company Ltd. v. Rajni Devi and others, 2008(4) RCR(Civil) 905: 2008(6) RAJ 396: (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 claimed 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 FAO No. 1200 of 2008 -5- 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 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 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 of the MVA. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court FAO No. 1200 of 2008 -6- was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case”. In New India Assurance Company Ltd. V Sadanand Mukhi and others 2009(1) RCR(Civil) 817, the Hon'ble Supreme Court held that the owner of a vehicle was not entitled to any claim where the accident took place on account of some animal coming in front of a motor vehicle. Even son of owner was not a third party in relation to Insurance Company. In view of the above, learned Tribunal was not justified in accepting the claim-petition filed by the claimant under Section 163-A of the Motor Vehicles Act, by granting him compensation to the tune of Rs.1,64,700/-. Resultantly, the present appeal, i.e. F.A.O. No. 1200 of 2008 filed by the Insurance Company is accepted and the impugned award passed by Motor Accidents Claims Tribunal while granting amount of Rs.1,64,700/- to the claimant is set-aside. As a corollary thereof, F.A.O. No. 3759 of 2008 filed by the claimant for enhancement of the amount of compensation is dismissed. ( T.P.S. MANN ) May 20, 2010 JUDGE ajay-1