.^1^1- c'P IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fCl No. »4 u\ / 2009WS:?%TI mvm APPELLANT rNon-ApDlicant No.2) ..T.. ^^ ....^•& RESPONDENTS fApDlicant^ ^ The New India Assurance Co. Ltd., through;- the Regional Manager, D.0.-2, Jivan Bima Marg Road, Pandri, Raipur (C.G.) VERSUS 1. Smt. Tarabai Wd/o. late Kishan Das, aged about- 37 years, 2. Umesh Das S/o. Kishan Das Manikpuri, ag'ed about-09 years, 3. Dinesh Das S/o. Kishan Das Manikpuri, aged about- 07 years, 4. Durgesh Das S/o. Kishan Das, aged about- 03 years, 5. Kashidas S/o. late Manrakhan Das Manikpuri, aged about- 50 years, Respondent No. 2 to 4 through- natural guardian mother Tarabai Wd/o. late Kishan Das Manikpuri ® ^^® ^^. All R/o. Village Kesla, Post Kosbandi, P.S. Palari, District- Raipur (C.G.) 6. Manish Kumar Sahu S/o. S/o. Jairam Sahu, R/o. Village Mudpar, P.S. Palari, District- Raipur (C.G.) - Owner MISCELLANEOUS APPEAL U/S. 1730F MOTOR VEHICLE ACT. 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH: 'BLE MR. G. MINHAJUDDIM JJ. M.A. lcl No. 184/2009 Appellant Non-apDlicant No.2 Vs Respondents (Applicants) The New India Assurance Co. Ltd. Pandri, Raipur (CG) Smt. Tarabai and others Present: Mr. AK Athatey, counsel for the appellant/insurance company. Mr. SC Verma, counsel for respondents No. 1 & 2. :R(Oran (121nAugust,2ei1) Perl.M.Quddusi.J This appeal has been filed under Section 173 of the Motor Vehteles Act, 1988 against the award of the 1st Acteiitional Motor Accident Claims Tribunal, Baloda Bazar dated 25th November, 2008 passed in Claim Case No.14/08, fastening the Uability upon the appellanVinsurance company to satisfy the award. 2) Brief facts of the case are that on 1.8.2007 at about 8 am, Kishandas was coming by motorcycte of IWanish bearing registratton No. CG-04-CU-3275 near Ambuja School situated at Baloda Bazar. However, all of a sudden, the motorcycle became uncontrollabte on account of there being pits on the road. As a result, Klshandas feU on the road. At that very time, another motorcycte bearing registratton No.lO-BC-7069 came there and Kishandas was accidentalty dashed by that motorcycle and sustained grievous injurles. He was rushed to hospital, however, during the course of treatment he died there on 3.8.2007. Report ofthe accident was lodged in the police station. 03) Respondent No.1 is widow of the deceased, respondents No. 2 to 4 are sons of the deceased whereas respondent No.5 is the father of i;{liA'^-S-!;ST^:3£.»-»-d^S. .^f^ / £ fr^.s^ 1 1 ^£slJ the deceased. The deceased was a tractor driver by profession and thereby used to earn Rs.40,000/- per year. The claimants were fulty dependent upon him. On account of his sucklen demise, they have suffered a lot. With the aforesaid averments, they being legal heirs/representatives of the deceased, frted a claim petition under Sectton 163A of the Motor Vehicles Act. 1988 (in short "the Act") for a total compensation of Rs.5,17.000/- against the death of Kishandas under various heads. 04) However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.3.56,800/- in favour ofthe ctaimants. fastening the liafcwllty upon the appellant/insurance company to pay compensation. 05) We have heard tearned counsel for the parties, perused the LCR as also the impugned award. 06) Upon perusal of the LCR, we have found that it Is a case where the deceased borrowed the two wheeler from its owner, therefore, he stepped into the shoes of the owner and was representatlve of the owner of the vehide and in view of the judgment of Hon'ble the Supreme Court in the matter of Oiientol Inswwice CompanyUd., vs. Rajnidevl; reported in (2008) 5 SCC 736, it has been held Uiat Section 163-A of the Motor Vehides Act, 1988 cannot be sald to have any applicatjon in regard to an accident wherein the owner of the motor vehicte himself is involved. It was further held that the liability u/s 163-A of the Act is only on the owner of the vehicle since a person cannot be both. a daimant as atso a recipient, the heirs of the deceased could not have maintained a claim in terms of Section 163-A ofthe Act. 07) Further in case of Mngamma smd another vs. ilntted Imtta Insurance Company Llmtted; reported in 2009 (13) 8CC 710, the Supreme Court while referring to the case of Ortental Insuranee Company Ltd. vs. Rajnldevi (supra), held vide paras 21 & 22 as follows: "21. tn our considered opjnion, the ratio of the dectsion in Oriental Insurance Co. Ltd. case is cteariy applteabte to the facts of the present case. In the present case. the ^o ^^r" :^.~N4 ^':.::S&SA —^ deceased was not the owner ofthe motorblke tn questton. He borrowed the said motorbike from tts real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorized to drive the said vehicle L, ^ 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 satd proviston would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner ofthevehide. 22. In a case whereln the victim died or where he was permanently disabled due to an accktent arising out of the aforesaid motor vehicle in that event the Uablllty to make payment of the compensatlon is on the Insurance Company or the owner. as the case may be, as provided under Section 163-A of the Act. 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 liabJIity to pay the same is on him. AccoreBngfy, the legal representatives of the deceased wrtw have ,. stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section AoftheMVA." 08) From perusal of the materjal available on record, we have found that though the deceased was an employee of the owner of the motorcyde i.e. respondent No.6 Manish Sahu, who has stated in his statement that being an employee, he allowed the deceased to borrow the motorcycie, but he has not stated that the deceased was sent for the work of the owner. Therefore, the deceased stepped into the shoes of the owner and hence, the claim petition under Section 163A of the Act, 1988 was not maintajnable. In view of the above, the impugned award, passed in a claim petition which was not mahtainable at all, is nonest in the eye of law. 09) In the result, the appeal is allowed. The impugned award is set aside and it js held that the claim petition under Section 163A of the ^ r F Act, 1988 was not maintainable. The appellant^nsurance company is exonerated from jts JiabUity to satisfy the jmpugned award. However, the daimants cannot be kept remedlless and they have the remedy available under Section 166 of the Act, 1988 to daim compensation. They may also claim against the offending vehide. Therefore, while aHowing thjs appeal and setting askle the impugned award, h'berty is reserved to the daimants to fite a fresh daim petition, other than under Section 1 63A of the Act, 1 988. No order as to costs. ny Sd/- II.M. Quddusi Judge Sd/- G. Minhajuddin Judge K/