IN THE HON'BLE HIGH COURT OF CHHATISGARH AT BILAPUR Misc. Appeal {C} No. "T^ ^ /2010 ©s^^teRa.,-'.C.;,, APPELLANT Cholamandalam MS General Insurance Corapany Liniited, \^*^ Jtfc-J^ Through Branch Manager, OCS 6th, /^<y.<^"^^v^ 2nd floor, Super Marker, Agrase ...^^A. ^ Chowk, BUaspur (C.G.) ^.-5.^ Through- Regional Office , Indore (M.P,) {INSURER} ^••"" VERSUS RESPONDENTS 1) ^ ^ ^ 2) Bhurthu Ram Patel S/o Puranik Ram Patel aged about 45 Years, Mrs. Alagmati Patel W/o Bhurthu Rara Patel Aged about 43 Years, Both R/o ViU. Him Post Rlsda, TahsU and PS Masturi, Distt. BUaspur (C.G.) Claimants "3) ^ Bedram Patel S/o Manbodhitam Patel R/o ViU. Kuthur, PS Pamgarh, Distt. Janjgeer-Champa (C.G.) COWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 The appellant begs to submdt as under: ^- HIQH CO'URT OP eH'HATriSOAmi, BII-ASFUR DB: HOM'BLE I.M. OUDDVBI & PIiASHAKT KUMAR SSSSHR^, JJ, aa. A(C| wo. TSS or 2010 ! APPEl.-X.ANTS ! ! CholasiandpJam M-S General j j^^ ^^^^ ^^^^ ^^^_^^ ^ Vs. f'iRESP011Dis^~''~''!''~T^ MI8C.APPBAL U/8 173 OP THB MOTOR VBHICLB8 ACT, 1988 APPBAKAWCB: Mr, M.L. Sakat, counsel tbr the appellant. None tbr ftie respoiidents thougii served. ORDJBR('Oi<AL| $0l.02.2011i Per..1.M._<BUD]DVSI,_J^ 1. List is benig revised. Case is agaiii caUed oiit. Wtien ttie matter is taken up fbr Iieaiitig, Mr. M,L. Sakat, Advocate appears on behalt of the appeUaiit aiid no one appears on behalf of the respondeHts desplte service of notice. Therelbre, the inatter is heard fixiatly, 2. This appeal has beeu liled by fhe Insurance Coixipaiiy against flie award dated 06.01.2010 passed by Ist Addl. Motor Accident Claims Tribunal, Bilaspiw (C.Gl ia Claim Case No. 64/2009. 3» Brief iacts of ffae case as per ttie version of the claimaiite are tiiat 011 01.09.2005 deceased Raiu Kumar Patel was dnvmg fhe motorcycle bearmg Kegn.No.C.G.ll/B-9884 on ttie iiistructions of his uucle who was tlie owuer/respondent no.3 hereia. The owner was also sittmg as piUiou ndei\ ^ t^8€ ^' .^^ l'"-s3^ 4. §. Wlien fliey reaclied Lalarge tuni at Gopal Nagar where tlie road work was going on axid ttie boulders.. cruslied stones and other inaterial were also lyiag on ttie road aide, he noticed a truck was coititag speedily troin opposite direction aad ui order to escape ttie conseauences he txied to dilve ttie niotorbike towards lett side aiid tell dowii irito a if>ad side pit, as a result of whicti, lie sustaitied loiuiles 0x1 tiis Iiead ancl otlier parts of ttie body. He was brougiit to a aeaxby tiospltal from. where he was referred to Bhilai Hospital where he died on 10,09,2005 durmg fhe course of ti'eatiaent ia CtiaaduJlal Chaadrakar Hospital, Neliru Nagar, At ftie time of accident, the deceased was aged about 22 years. He was worisiug as Coininissioii Agent aad was eanaing Rs,3000/- per ixiontfa. ihe claifBtaats being parents/legal represeiitatives of tlie deceased liled an application belbre tJie lilbunaJl ii/s 163-A of ftie Motor Velucles Act, claiaiioiR coiapensation to tlie tune of Rs.4^41,500/- Ibr the deatii of cieceased 10 tlie said accident, Tllie leamed Claims Tribuual heM tliat tlie deatli of ttie deceased was caused while usmg the said motorcycle wliicJhi has inet with fhe accident aad it is not proved fhat tlie said inotorcycle has breacfaed the conditions of iasuraiice policy. The Tribunal has awarded Rs.3,69,500/- as compensation which flie claitnaats are entitled to receive froici ffae appellaiit Insurer aad respondent iio,3/owiier joiatly and severallv. Leanied counsel fbr tJie appeUant has urRed ttiat Uie dniver of ffae vehicle was xiot havinR vaulid aiid ejlectiive dnv:oiR license on the date of accident and theretbre, the limui^uice s' :""' 3. '^ ^^ ^-^-1; .^ ^sS^ CoiGipaiiy siiould iiave been exoxierated troni its Uability. 1 lie ottier corAtention is witii re^aixl to tlie Quaiituxa taxed bY tlie TnbunaA. 6. Wifli repard to ffae tirst contentioii, we Jtiave penised tJie lower court record and tbund tfaat no evidence has been led by fhe appeUaat Insuraiice Coiapaay to prove tiiat ttie driver of flie vehicle was not haviag valid aad eflective driviag Mcense on the date of accident, Th^ appeUant tii»urance Compaay has examined Shri 'l'usfaar Bendale, Assistant Maaager (Claims), posted at Indorc as N,A.W.2 who ia his cross examtaation Iias stated that he does not .teaow wjietfaer the deceased was haviag vaMd aad etiective driviiig Mcense at the time of accident, The burden of proof Mes iipon ttie itisurance coixipaav to prove tfaat at tlie tLme of accident ttie driver of the veliicle was not faavtiig vaMd aad eflective driviag Ucense and siace thLe tasurance coiapaQy has tailed to prove fhe saoie, ftus contention is not sustaiaable m fhe eye of law. T. However, wiffa regard to the quaiitiini, it haa conie on record ttiat ttie inotorcycle was registered ia tfae naiae of Bedraiii Patel, respoiident no.3 who had authorteed ttie deceased to drive Iiis vehicle, 1 he owner iiimself was sittiiig as a piltion rider, 8. lt is pertuient to nientioii here ttiat Sub-sectloii (1) ofSectioB 163-A of the Motor Veliicles Act provides tliat notwitlistaadmg aayftiing contaiiied m fhls Act or m aoy otlier law fbr the time bemg m tbrce or mstrument tiaviag the tbrce of law, ftie owner of the motor vehicle or ftie ^ auttiorized msurer sliail be Mable to pav m tiie case of deatti or permanent disablexxient due to accident axusiiig out ol tlie use ot inotor veliicle, coxiipensatioxi, as mdicated in ttjie second scliedule, to the legal Iieirs or ftie victium^ as tfa^ case inay be. Thereibre, it would clearlv stiow that fhe Uabitity to pay ttie coinpensation is eittier on flie owner of fhe vefaicle or on the auflionzed insurer, 9. It is well settled law that a person who borrowed fhe veJiicle (xaotorbilce) Iroin tfae owner steps into tlie slioes of the owner of tJie vehicle and fh.us caanot claim conipensation Iroiii himselt (owner) m view of fhe decision of Hon'ble ftie Suprcme Coiirt ia case of Oriental Jnsiircmee Cenwony I/tel., rs. MajnMevi; reported in. (SSOOSf S SCC 736 where it Iias been Iield that sectiou 163-A of tfae Motor Vehicles Act 1988 cannot be said to have aay appMcation iti regaixi to aa accident wiiereia the owner of tfae niotor vehicle hmiseM is iiivolved. Iii tlie tastaxit case, ttie deceased was xiot real owner of fhe laotorbike aad lie was auttionzed bv ttie owner to drive his vehicle. Therefore, neifbier he was a fhinl party nor was aa einployee of fhe owner of fhe laotorcycle. 10. Purther in case of Mnffmnnw, cind anoWter Vs* CWtted Jn<ttaJnsur<mcc CompanM^t^tedw^ SCC_710{ fhe Apex Court referrmg to the case of Oriental Insurance Company Ltd, Vs. Rqfmdevi (Supra^ has held vide Pams 21 & 22 as tbUows: ^21. In our considei^d opinion, ftie ratio of the decision in Oriental Insurance Co, Ltd. Ca^e is clearly appllcable to the facts of the present case. In fh^ present case, the deceased was not 1&e^^ow3Q^LJ°f tble mQtorbike ia qixestion.^Jie ^ (v \ boiTowed ttie said inotorbitee troia its real owner. 'l'iie deceased cannot be tield to be an eiiiployee of the owner of the inotoit»ike altlhougli he was autbiorized to drive tlie said veliicie bv its owner aiict, Uieretore, lie woiiid step iato tiie siioes of thie owner of ttie niotorbiMe, We tiave ali^ady extracted Section 163-A of ttie MVA Iiereuxbetbre. _^A_,bare_pera§al,,_^ pioyi&ion wpuJkl make it explicitty cleai ttiat persons like ttie deceased in tiie pi^aent caBe would step iato ttie stioes of ttie owiier crf ttie vetucle. 22. Ina case wherem the victmi died or where he was permanently disabled due to an accident arisiag out of fhe atoresaid motor veliicle iii tiiat event titie liability to iniake payinent of ffae coinpensation is on ftie iasuraace Coioipaay or fhe owner, as tAie case inav be, as provided under section 163-A of fhe Act But tt it is proved fbiat the driver is ftie owner of ttie niotor velucle, ia that case fhe owner could not htmsett be ajnwinieiit^^^^ JB^JSlJ^^Q^!^^OM^Nm^,..,A representatives of the deceased wtio have ,^PJS^jd^Hito^e^shoe§^of,tl ,,o^^ vehicle could not have claiaied coitipensatioii under Section 163-A of the MVA." s ^ (Bmpliasis suppMedl 11. In fh.e iastant case, siace tbie deceased was aufhorized to drive the inotorbike by its owner, he haa stepped into the shoes of fhe owner aad in view of the above positioii ot law, his legal representatives beiag clamiaaits are not entlfled to get comLpensation j&nia tJie owner. Hence flie Uability of the Insiiraace Conipaoy has to be coxisidered ia tfaie UgM of tfate evidence on record which, as xuientioned above, shows that ^,,^^s^^^ ^y- • • ^-^ .-•^•^ '^ ^l ^^afe, 1 ^y tiie rasurer lias not been able to prove tliat ttie dxiver was not havmg valid aad ettective drlvmg license, It has also come on record tiiat the motorbike was covered under ffae tasuramce poMcy aad there was no breach of condittoiis of tlie policy. However, a perusal of the poMcy coitditions would stiow tfaat it was a package policy aad flie compulsory PA to tbe owner-driver was Uouted to tfae extent of Ks. 1,00,000/ -» 12. The Tribunal has awarded Ks,3,69,500/ as compensation. Siiice the risk covered by fhe iasuraace compaay is to the extent of Ks. l.OO.OOO/- and fhe claua was filed u/s 163-A of the xnotor Veliicles Act^ the reniatauig amount caiinot be clainied froin the owner in view of ttie decisioiia of the Suprenie Coiirt, reterred to above. 'IIieretbre, we ailow this appeal ia part and reduce the aaiount of cojiipensation to the extent ofRs. 1,00,000/- oiily. Tlie claiiiiants steaM be entitled to receive Ks.l.»00,000/- troBi ttie Insuraiice Coinpany. Accordiagly, tmpugned award dated 06.01.2010 is nioditied. ^^ ——— Sd/- I.M.Quddusi Judge Sd//- Prashaiit Kumar Mishra Judge Kao