1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 172 OF 2004 1. Mrs. Farzana Bibi, major, widow, 2. Mast. Shaifull Islam, alias S. K. Saiful Islam, Minor, aged 9 years, 3. Miss Sabina Asymen, alias Sabina Easmin, minor, aged 10 years, 4. Miss Shalana Khatun alias Salma Khatun, minor, aged 4 years, Nos.(2) to (4) are represented by their mother and legal guardian appointed by M.A.C.T. Panaji, all r/o H.No.644(1) Nagali, Taleigao, Goa, presently residing at Ishan, Mukteshwar Village, Golgram Post, Debra P.S. Midnapore Dist.West Bengal. ... Appellants versus 1.{ Mr. Ashok Kumar Maiti, Fl.No.CT/2, 3rd Floor, Taleigao, Goa.} (In view of order dated 19-11-10 appeal is dismissed against respondent no.1) 2. The New India Assurance Company Limited, Coscar 2 Corner, 1st Floor, Hotel Bardez, Mapusa, Goa. ... Respondents Ms. R. Kantak, Advocate for the Appellants. Shri E. Afonso, Advocate for Respondent No.2. CORAM : F. M. REIS, J. DATE : 21ST JANUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 25-3-2004 passed in Claim Petition No.82 of 2001. 2. The appellants filed a Claim Petition under Section 163-A of the Motor Vehicles Act, 1988(Act, for short) claiming a total sum of Rs.5,00,000/- on account of the death of Shaikh Islam in a motor vehicle accident. 3. The case in brief of the appellants was that on 8-7-2000 at about 10.15 p.m., the deceased Shaikh Islam was driving a motorcycle of make “Bajaj” and was returning from Vasco to Taleigao after his work and when the deceased reached near Vadem Lake, Chicalim, a truck came from opposite direction with full head lights and blinded the 3 deceased who hit and skidded against the side road which resulted in his death. The respondent No.1 admitted that the motorcycle involved in the accident belongs to him. The respondent further stated that the deceased Shaikh has a valid driving license and has also stated that the Insurance Company is bound to indemnify the respondent No.1 from any compensation payable to him. The case of the respondent No.2 is that the Tribunal has no jurisdiction to try the Claim Petition as according to them the claim for compensation for self victim of the accident of the vehicle is not maintainable as against the owner. They accordingly prayed that the Claim Petition be rejected. 4. The Tribunal treated issue No.2 as a preliminary issue and held that the person who himself is responsible for causing the accident cannot fall within the purview of Section 165 or 166 of the said Act, and consequently the person cannot initiate action against himself by pleading that because of his fault losses was caused to him. The Tribunal further held that Section 163-A has created a new right in favour of the claimant which is similar to the right of Section 140 of the Act and further held that there is nothing under Section 163-A to show that the person who himself is responsible for the occurrence of the accident can 4 file a Claim Petition against himself. Consequently, the Petition came to be rejected. 5. Learned Counsel for the appellants has assailed the impugned Judgment and submitted that a Claim Petition was maintainable in view of the non obstante clause in Section 163-A of the said Act and as such the person claiming compensation need not be a third party. Learned Counsel further submitted that the Tribunal has misdirected himself in rejecting the Claim Petition filed by the appellants. 6. On the other hand, Shri E. Afonso, the learned Counsel for the respondent No.2 has supported the impugned Judgment. He pointed out that a person in order to file a Claim Petition has to be a third party and submitted that the appellants have stepped in to the shoes of the owner. Learned Counsel further pointed out that the question of claiming compensation against himself does not arise and the Tribunal was justified in rejecting the Claim Petition. 7. Having heard the learned Counsel and on perusal of the 5 record, I find that the only point for consideration is whether a person has to be a third party for the purpose of filing a Claim Petition under Section 166-A of the said Act. There is no dispute that the legal representatives of the deceased are not third parties. This aspect is no longer res integra in view of the Judgment of the Apex Court reported in 2009(13) S.C.C. 710 in the case of Ningamma and Another vs. United India Insurance Co. Ltd. wherein the Apex Court has held at Paras 19, 20, 21 and 22 thus: “19. In Oriental Insurance Co. Ltd. v. Rajni Devi wherein one of us, namely, Hon’ble S.B. Sinha, J. was 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. 20. It was held in Oriental Insurance Co. Ltd. case 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 6 the MVA. 21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is clearly applicable 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 an 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. 22. 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.” 8. The learned Single Judge of this Court in the Judgment reported in 2008 ACJ 1280 in the case of HDFC Chubb General 7 Insurance Co. Ltd. vs. Shantidevi Rajbalsingh Thakur and Anr. has held at Para 44 thus : “44. Though the application is under Section 163-A, which does not require proof of negligence for claiming compensation, the requirements of the policy and the limits of liability of the insurance company would be under Section 147 of M.V. Act and no other. Consequently, the term 'any person', as including only a third party which, upon a consideration of the aforesaid cases excludes the gratuitous driver, a gratuitous passenger, the employee of the owner or a pillion rider in the absence of a specific cover must apply to the driver of the motor cycle who met with the fatal accident also. Upon the same analogy, therefore, the 'victim' under Section 163-A would exclude these persons. It would include only third parties which are taken to be pedestrians, passers-by and such other persons not in the motor vehicle and who specifically could not be covered under the insurance policy. It would also not include a person himself negligent and on whose account even the owner would not be vicariously liable as he cannot claim damages. As held in the case of United India Insurance Co. Ltd. v. Kantabai, by the Division Bench of this Court it is difficult to entertain the contention that the liability in respect of tortfeasor himself would be covered by the insurance company and that such tortfeasor (or his legal heir) could sue the insurance company under the contract of indemnity or under law of Torts to pay compensation. Hence no driver can claim compensation for the accident de son tort. Consequently, the liberal construction of Section 163-A of the M.V. Act sought by the advocate of respondent No. 1 cannot be granted, ignoring the very purpose of the legislation and which would render it liable to large scale abuse of drivers 8 neither confirming with standards of care and caution and owners not taking cover against such action by a special contract with insurance companies upon payments of the requisite premium to cover such risks. “ 9. In the present case, admittedly, the appellants are not third parties and consequently the Tribunal was justified to dismiss the Claim Petition. 10. In view of the above, I find no infirmity committed by the Tribunal in rejecting the Claim Petition, and consequently the above appeal stands dismissed with no orders as to costs. F. M. REIS, J. RD