F.A.O. No. 87 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 87 of 2011 Date of Decision: November 23rd, 2011 New India Assurance Company Limited .... Appellant Versus Sewa Singh and another .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Ashwani Talwar, Advocate, for the appellant. Ms. Kavita Sharma, Advocate, for respondent No. 2. VIJENDER SINGH MALIK, J. New India Assurance Company Limited, insurer of motorcycle No. PB-13Q-2149 has brought this appeal questioning the validity of the award dated 8.10.2010 made by the Motor Accidents Claims Tribunal, Patiala (for short, "the Tribunal"). Sewa Singh, claimant had brought a claim petition under the provisions of section 163-A of the Motor Vehicles Act, 1988 (for short, “the Act”), for grant of compensation on account of injuries suffered by him in a motor vehicle accident that book place on 3.5.2009 within the jurisdiction of Police F.A.O. No. 87 of 2011 2 .. Station Patran, District Patiala. Learned Tribunal has awarded a sum of ` 1,15,500/- as compensation in favour of the claimant, payable by respondent No.2, the appellant. The facts necessary to be noticed for disposal of this appeal are as under: On 3.5.2009 at about 7.30 p.m., Sewa Singh was returning from his village Brass after doing his duty with his employer, M/s Vikas Concast Private Limited, Sangrur Road, Dirba, District Sangrur on a motorcycle bearing registration No. PB-13Q-2149. When he was near Nirmal College, within the jurisdiction of Police Station, Patran, all of a sudden a cow came in front of his motorcycle. The claimant applied brakes in order to save the cow but in the process, he lost control over the motorcycle and fell on the pucca road as a result of which he suffered multiple injuries all over his body including head, face etc. He had fractured his nasal bone and skull. He was taken to Amar Hospital, Patiala by his relatives, where he remained admitted from 3.5.2009 to 11.5.2009. He was operated upon for his head and facial injuries. Claiming that he has already spent a sum of ` 4,00,000/- on his treatment and requires another amount of ` 2,00,000/- for his future treatment and that he has become permanently disabled, he has brought this claim petition. The motorcycle belonged to the employer of the claimant, who has admitted in its written statement that the claimant met with an accident on 3.5.2009 near Nirmal College. It is also admitted that he was travelling on the motorcycle F.A.O. No. 87 of 2011 3 .. when he suffered the injuries. Permanent disability suffered by the claimant is also admitted by respondent No.1. The Insurance company has, however, denied the claimant to have received any injury in the alleged accident or his having remained admitted in Amar Hospital for treatment. His other averments regarding age, occupation and income are denied. He is denied to have spent any amount in his treatment. It is, however, admitted that the motorcycle was insured with the answering respondent for a period from 11.1.2009 to 10.1.2010. The claimant is denied to hold a valid and effective driving licence on the date of accident. All the pleas under sections 147, 149, 157 and 170 of the Act were taken by just reference to the aforesaid provisions. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether petitioner Sewa Singh received injuries in a motor accident which occurred out of use of motorcycle No. PB-13Q-2149 on 3.5.2009 in the area of Nirmal College, P.S. Patran? OPA 2. Whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPA 3. Whether the driver of offending vehicle was not having a valid and driving licence? If so, its effect? OPR-2 4. Relief. Parties led their respective evidence. Hearing learned F.A.O. No. 87 of 2011 4 .. counsel representing them, learned Tribunal awarded compensation in a sum of ` 1,15,500/- to the claimant vide the impugned award. The insurer has questioned this award on the ground that the claim petition is not maintainable because the claimant is not a third party. I have heard Mr. Ashwani Talwar learned counsel for the appellant and Ms. Kavita Sharma, learned counsel for respondent No. 2. I have gone through the record carefully. Learned counsel for the appellant has submitted that under section 163-A of the Act, under which the claim petition had been preferred, the owner of the motorcycle or the authorized insurer would be liable to pay the compensation if the death or permanent disability had occurred due to accident arising out of the use of the motorcycle. According to him, the claimant in this case is the employee of the owner and as per the decision of Hon'ble Supreme Court of India in New India Assurance Company Limited Vs. Sadanand Mukhi and others (2009) 2 Supreme Court Cases 417, the claimant would step into the shoes of the owner. According to him, it has been laid down in the aforesaid decision that unless the person driving the vehicle has been a paid driver, he would step into the shoes of the owner and the owner cannot be a claimant as well as a tort-feasor, responsible to pay compensation. In this regard, he has cited before me a case reported as Ningamma & Anr. Vs. United India Insurance Co. Ltd. J.T. 2009 (8) SC 262. F.A.O. No. 87 of 2011 5 .. Learned counsel for respondent No.2 on the other hand has submitted that only a petty amount of ` 1,15,500/- has been awarded by the Tribunal. According to her, the court should take a compassionate view in the matter and should uphold the award. Though the provisions of the Act with regard to grant of compensation to the victims of road side accidents are beneficial provisions, yet no compensation can be awarded on compassionate grounds unless the same could be allowed under the provisions of the Act. Being an employee of respondent No.2, M/s Vikas Concast Private Limited, respondent no.1 was availing the facility of the motorcycle which was owned by M/s Vikas Concast Private Limited. No terms of grant of this facility have come on the record and in the absence of the same, claimant would step into the shoes of the owner with regard to the insurance company. As under section 163-A of the Act, the liability to pay the compensation is upon the owner of the vehicle, the owner cannot both be a claimant and a tort-feasor. It is so laid down by Hon'ble Supreme Court in Ningamma's case (supra). An employee to escape the ratio of Ningamma's case (supra) should be a person employed by the employer as driver of the said vehicle. In the instant case, the claimant appears to have been authorized to drive the motorcycle by the owner in relation to his employment with the owner and, therefore, he would step into the shoes of the owner of the motorcycle. The F.A.O. No. 87 of 2011 6 .. point involved in this appeal has been discussed threadbare in Ningamma's case (supra) and although the decision under appeal was set-aside and the matter was remitted to the High Court for fresh decision, yet it was for consideration as to whether the claim could be maintainable under the provisions of section 166 of the Act. In these circumstances, the claim petition of Sewa Singh is not maintainable under the provisions of section 163-A of the Act. Consequently, the award made by learned Tribunal is not sustainable. The appeal is, therefore, allowed and the impugned award is set aside. (VIJENDER SINGH MALIK) JUDGE November 23rd, 2011 som