Bl,K.:I|[I^®3i RrE.m,(3HaiM BU.ASPUR^HH^T'nSGAfim as M.A.tC^No. -W) ^^ .OfM^ Et-AMTS pUtMyTS ttESPONDENTS NOJSI-APPLICANTS ^o .^ /•••^ €^'^' ^\^ !8. .^- ••cSS' s.y- :- L Smt. IndiyaBai,widowof..^-f Ramprasad, aged aboiif 33 years, 2. Lokesh Kumar, son of Ramaprasacl Dewangan, aged aboiit 15 yearsi, 'y 3. Ku. Hema, daughter of Rs(napras8d Dewangaa, aged about 12 years, 4. Tushar, son ofRamaprasad Dewerlgaii aged about 9 years, 5. Smt. Mathurabai, wife of Bhikhari Ram Dewaiigan, aged about 58 years, Appellant no. 2, 3 and 4 being mitioi, through their next fi'ieiid and natural guardian mother respondent no. 1 Smt. Indiya Bai, All resident of Village Patan, Ward no, 4, Azad Chowk, Post Patan, Tahsil PataiT, District Durg (Chhattiagarh). VERSUS - ., :-1. Akhilesh Kumar, sott of'l'hakurram ^ . .. „„ Dewangan, aged about 22 years, resident ofNawagaon, Kachi-ia, Tdhsil Kiirud, District Dhamtari (Chhattisgath), Present resident ofM/s Sakhirfam Kirana Stores, Purana Bazar, Pataii, Tahsil Patan District Durg (Chhattisgarh), 2.^, United India Insuranoe CompQtly LimltBct, 7 Head Office 24 Whftes Road, Chettnai, Divisional Office thi'ough DivisiOnal Manager, Near Kutcheri Chowk, Raipur, Tahsil and District Raipur (Chbattisgarh) :£(' UNDER.SECTION173 OF,MOTOMVEmCLES_A£I, Lj^.^Oll^L "aa^ V i ^pa'SK. '& i tss?S^ @ 1 'V£S->v'"'~!ilj | '%y//^ RESPONDENTS M.AfONo. 1069 of 2007 Smt. Indiya Bai & others Versus Akhite.sh Kumar 8 Another APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon'ble Shri N. K. Agarwat & Hon'bte Shri G. Minhajuddin, JJ. Present : Shri Venkateshwar Tiwari, Adyocate for the appe'lants. Shri Shivendu Pandya, Advocate for respondent No.1. Shri HB Agrawai, Sr. Advocate with Smt. Meera Jaiswal, Advocate for respondent No. 2. i7.08.2011) 1. The instant appeal has been preferred by the appellants against the award dated 10.05.2007, passed by the Ist Additional Motor Accident Claims Tribunal, Durg (for short 'the Tribunai') in claim case No. 78/05 dismissing the claim petition of the claimants. 2. Brief facts of the case are that, on 13.11.2003, whiie Ramaprasad Dewangan (Since deceased) aiong with one friend Chandrashekhar DewaRgan was coming Patan from Gariyaband by Hero Honda motorcycle bearing regjstratjon No. CG-05-A-1190, Ramaprasad Dewangan !ost hte balance over the motorcycle and fel! down as a result of which he succumbed to the iniuries sustained in the said accident. h /sz' 6. The claimants preferred an application before the Tribuna! under Section 163-A of the Motor Vehicles Act, claiming compensation to the tune of Rs. 4,19,167./- for death of Ramaprasad in the said accident. We have heard the counsel appearing for the parties and perused the records of the Tribunal as well as award impugned. The Tribunal, dismissed the claim petition inter-alia on the ground that as th.e deceased himself was negligent, therefore claim petition fited under Section 1 63-A is not maintainable. True, in view of judgment of Supreme Gourt in case of Deepal Girishbhai Soni and others v. United tndia insurance Co. Ltd. Baroda, reported in 2004 (5) SCC-386, under Section 163-A of MV Act claim petition can be preferred by the legal representatives of the deceased who himself was guiity of negligence and the finding arrived at by the Tribunal while dismissing the ciaim petition is not sustainable in law. However, this will not effect the ultimate result inasmuch as in the instant case Ramaprasad and his friend Chandrashekhar, after borrowing the motorcycle from its real owner were coming to Patan from Gariyaband, deceased cannot be held to be an empioyee of the owner of the motorcycle aithough he was authorized to drive the said vehicie by its owner, and therefore, he would step intd the shoes of the owner of the motor vehicle. Accordingly, the lega! 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 MV Act. Claim itsetf was not maintainable as deceased was not third party. •^- "^ '^ t? i ,v The Supreme Court in case of Ningamma & Another v. United !i?! !n<a!!ran^ft C^n ! fd ha<a nh^^n/pr! m n?sr?t 1R ^ 1 tl ffcflllrt tl l^r*1t *<tl fa/^i' •»/'^» tuliui . t lt^»/ </(rf1Uit^irj ir 'i^t< II 1 hi'**' hn i •»/ '^* i under: "18. In the case of Orienta! Insurance Company Ltd. v. Rajni Devi & Others (2008) 5 SCC-736, wherein one of us, namely Hon'ble Justice S.B. Sinha is a party, it has been categoricaily held that in a case where third party is invoived, the liabitity of the insurance company wouid be unlimited. 'it was also held in the said decision that where, however, compensation is claimed for the death -if OT the owner or another passenger of the vehlcle, contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company woulu 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 ionger res integra. The llability 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 SecSion 163-A of the MVA. !n our consldered opinion, the ratio of the aforesaid decision is clearty appilcabie to the 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 employee of the owner of the motorbike although he was authorized to drlve She said vehicle bv its owner, and therefore, he would step into the shoes of the owner of the motorbike. 19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it expiicitly clear that persons like the deceased in She present case wouid step into the shoes ot'the owner ofthe vehic!e. !n a case wherein the victim died or where he was permanently disabied 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 js proved that the driver is the ovi/ner of the motor ^*s 1 .•2009AIRSCW4916 ^^ •£^. ^ \^:^s''^sr^ ^ '%.:sa$, g ^ @J vehicle, in that case, the owner could not himself be a recipient of compensation as She liability So pay the same is on him. This proposition is absoiutely clear on a reading of Section 1S3-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 1 63-A of the MVA. 8. tn view of above, the Tribunal has not erred in dismisslng the claim petition. The appea! being devoid of merit is liable to be and is hereby dismissed. No order asto costs. Sd/- N.K. Agrawal Judge Sd/- G. Minhajuddin Judge Sahu 1