IN THE HIGH GOURT O^CaillATTISGARH AT - BILASPUR §n M. A- (Cl N0. 12010 APPELLANT: /?°2-/'0.: ;-:':'.';;:::^T^^ ^^ ^ • • _ ,, f e) '"2^q't' Rakesh Kumar Jain, aged 46 years, soh of Shri Bhagchand Jain, railway contractor, resident of Jagmal chowk, Tikrapara, ;;^ ,Bilaspur, tahsil and district Bilaspur (C.G.). COwner) VERSUS RESPONDENTS: . Budhram Yadav, aged 55 years, son ofLaharam Yadav, ^ Punibai, aged 50 years, wife ofBudhram Yadav, 5. Fuleshwari Bai, aged 38 years, wife ofDhanesh Yadav, J^. Ku. Urwashi, aged 16 years, daughter ofDhanesh Yadav, J_5. Ku. Kanchan, aged 14 years, daughter ofDhanesh Yadav, >. Ku. Bhagwati, aged 12 years, daughter ofDhanesh Yadav, (17. Sagar, aged 10 years, son ofDhanesh Yadav, ^S. Sanju, aged 7 years, son ofDhanesh Yadav, Respondent No. 4 to 8 are minors, through natural guardian mother Fuleshwari Bai, All above are residents of village Portha, tahsil Sakti, distdct Janjgir-Champa (C.G.) ^^a-- fClaimants) 9. National Insurance Company Limited, Branch Bilaspur, districtBilaspuf(C.G.) w^" nsurer] ^^" APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988. ^^ HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench : Hon'ble Shri I. M. Ouddusi & Hon^ble ShrLManindra Mohan Shrivastava, JJ. APPELLANT RESPONDENTS M.A (C) No.668of2010 Rakesh Kumar Jain Versus Budhram Yadav & Ors. Appeal u/S 173 pf the^Motor Vehicles Act, 1988 Apoearance: Shri Somnath Verma, counsel for the appellant. Shri K.K. Dewangan, counsel for respondents No. 1 to 8. Shri Dashrath Gupta, counsel for respondent No.9/Insurance Company. None for other respondents. ORDER (Oral) (Passed on this 29th day ot'April, 2011) Per I. M. Quddusi, J. 1. This appeal has been filed by the owner of the vehicle in question i.e. motorcycle, bearing registration No. C.G. 10- EB 1531, against the impugned award dated 26th Februar}^, 2010, passed by the Additional Motor Accident Claims Tribunal, Sakti, in Claim Case No. 14/2008 allowing the claim petition of the claimants/respondents and imposing the liability to pay compensation upon the owner of the motorcycle in a claim petition filed under Section 163 A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act of 1988"}, wherein, the deceased borrowed the vehicle (motorcycle) of the appellant and met with accident. :"v . —- ^ . H ^^...^v ^ ''%.. ./' ^ ...^^" 2. The brief facts of the case are that the deceased, who was driving the motorcycle of the appellant i.e. the offending vehicle, was employed under the appellant and was going to Bilaspur to make a search of labourers, But, when he reached near Venkat Nagar, suddenly saw a bicycle rider and met with accident, resulting in receiving injuries on his head and, consequently, he died at hospital- Chhattisgarh Institute ofMedical Science (C.I.M.S.), Bilaspur. 3. The claimants i.e. alleged dependents ofthe deceased filed a claim petition under Section 163 A of the Act of 1988 before the Motor Accident Claims Tribunal, claiming compensation, in which, the appellant-owner of the vehicle was non- applicant No.l and the National Insurance Comp. Ltd., Branch Bilaspur was non-applicant No.2. 4. The Tribunal exempted the Insurance Company and imposed the liability upon the appellant-owner of the motorcycle to pay compensation to the tune of Rs.4,02,000/-. 5 . Before proceeding further, it is necessary to peruse the provisions of Section 163 A of the Act of 1988, which are reproduced as under: "163 A. Special provisions as to payment of coinpensation on structured fonnula basis. - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the \ motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, "permanent disability?? shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule/? 6. Since in the instant case, the deceased borrowed the motorcycle from its owner i.e. the appellant, he stepped into shoes of the owner and thus cannot be a recipient from himself/owner and, therefore, the claim petition under Section 163 A ofthe Act of 1988 was not maintainable. 7. In the case of Oriental Insurance Conipany Limited Vs. Rajni Devi and others (2008) 5 SCC 736 the Apex Court has held that Section 163-A of the Motor Vehicles Act, 1988 cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. In the instant case, the deceased was not the As. owner of the motorcycle in question. He borrowed the motorcycle from its real owner. Therefore, he can be neither a third party nor can be said to be the employee of the owner of the motorcycle. He was only authorized to use/drive the motorcycle by its owner and therefore he would step into the shoes of the owner of the motorcycle. 8. In the case of Nigamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710, following the decision in Oriental Insurance Company Limited Vs. Rajni Devi and others (supra), the Hon?ble Apex Court has held as under : a22. 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. 23. 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 '•.'^ . \ "^ ''5y\ ^'r. ..--.^ 'A II v<fe^ri | ^. '•^^! was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances ofthe present case.?? 9. A bare perusal of Section 163-A of the Act, 1988 would show that the liability to pay the compensation under Section 163- A is either on the owner or the authorized insurer. In the instant case, since the vehicle was not insured, the liability upon the owner is to be considered. But the owner cannot claim compensation from himself. 10. In view of the above, awarding compensation under Section 163-A of the Act of 1988 by the Tribunal to the claimants of the deceased, holding liability of the owner is against the well settled provisions of Law and thus, the impugned award dated 26th February, 2010 is liable to be set aside and is accordingly set-aside. 11. The appeal is allowed. It is held that the claim petition under Section 163-A of the Act, 1988, filed by the claimants/respondents before the Tribunal was not maintainable. No order as to costs. Sd/- I.lVI.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge &• t>' Praveen