APPELLANT IN THE HON'BLE HIGH COURT OF GHHATTISHGARH AT BILASPUR M.A.(C)NO.- \^-^}cr^- THE ORIENTAL INSURANCE COMPANY LIMITED, MADEENA MANZIL, KUTCHARI CHOWK, RAIPUR C.G. (INSURER OF VEHICLE N0.- C.G. 05 B 2571) RESPONDENTS .......»e£^ .»AW sw: '" v^ ^\.^ ...^' Vrs. :-1. SMT. YASHODA BAI GAHARWAL W/0 LATE t SANJAY KIJMAR GAHARWAL, AGE ABOUT 34 Yrs. 2. RAJESH KUMAR GAHARWAL S/0 LATE SANJAY KUMAR GAHARWAL, AGE ABOUT 15 Yrs. 3. BASANT KUMAR GAHARWAL S/0 LATE SANJAY KUMAR GAHARWAL, AGE ABOUT 13 Yrs. 4. PUSHPENDRA KUMAR GAHARWAL S/0 LATE 1- SANJAY KUMAR GAHARWAL, AGE ABOUT 11 Yrs. MINOR RESPONDENT NO.-2 TO 4 THROUGH GUARDIAN MOTHER SMT. YASHODABAI GAHARWAL S. SMT. RADHA BAI GAHARWAL W/0 LATE K.C. GAHARWAL AGE ABOUT 55 YRS. ALL RESPONDENT R/0 VILLAGE CHANDI, TAH. ABHANPUR, THANA, ABHANPUR, DISTT.- RAIPUR C.G. 6."^ PRAKASH CHAND CHAINWANI S/0 LATE LAXMAN DAS CHAINWANI, R/0 MANDI ROAD KURUD, DISTT.- DHAMTARI C.G. ^ (OWNER OF VEHICLE N0.- C.G. 05 B 2571) APPEAL UNDER SECTION 173 OF MOTORVEHICLE ACT 1988 ...^-StS^ ,^-"11"N /c..^^ El 'iVS -"~^ 't'!.. "'iS^,/ "1^^_..^-^^ Xs HIGILCOURTOF CHHAmSGARH. BILASPUR DB: Hon'ble I. M. QUDDUSI & Hoa'ble GHULAM MINHAJUDDIN, JJ APPELLANT: RESPONDENTS: M.AICt No. 1447/2007 The Oriental Insurance Company Ltd. Vs. Smt. Yashoda Bai and others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: Mr. Sudhir Agrawal, counsel for ttie appellant. None for the respondents. ORAL ORDER (21.06.2011) Per I.M. OUDDUSL J, 3. List is being revised. Case is again called out. Even when the matter is called out twice no one appears for the respondents. However, Mr. Sudhir Agrawal, appears on behalf of the appellant. Therefore, we proceed ex-parte against the respondents. This appeal has been filed by fhe Insurance Company against the impugned award dated 21.08.2007 passed by VIII Additional Motor Accidept Claims Tribunal (FTC), Raipur (C.G) in Claim Case No. 96/2006. Brief facts of the case as per'the version of claimants are that on 09.01.2006 deceased Sanjay Kumar Gaharwal was going to his village by Hero Honda Motorcycle bearing Regn. No.C.G.05-B/2571 owned by his friend/respondent no.6 herein. On the way, he fell down due to inechanical fault 'sf //' (^) s^f-y _y and sustained serious head injury. He was admitted in Ambedkar Hospital, Raipur where he succumbed to the injuiy on 15.01.2006 during the course of treatment. At the tiine of accident, the deceased was aged above 34 years. He was working as Conductor in a Taxi Jeep and was earning Rs.2500/- per month plus other allowances. The claimants being dependents/legal representatives have filed claim petition u/s 163-A of the Motor Vehicles Act for the award of total compensation ofRs.8,94,000/- on various heads. 4. The learned Claims Tribunal has awarded a total compensation ofRs.3,01,500/- to the claimants holding that the deceased died due to mechanical fault while he was driving the motorbike; there was no breach of policy conditions and fhere was no negligence on the part of the deceased. 5. We have heard learned counsel for the parties and have also gone through the records of the Tribunal. 6. It is an admitted fact that the motorcycle did not belong to the deceased. He borrowed the saine from its real owner i.e. respondent No.6 herein and as mentioned in the claim petition, the accident took place due to inechanical fault of said motorcycle. 7. In the matter of Oriental Insurance Company Ltd. Vs. Rajni Devi reported in (2008) 5 SCC 736 Hon'ble the Supreme 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. It was further held that the liability h under Secdon 163-A of the Act is only on the owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the Act. 8. Further in the matter of Ningamma & another Vs. United India Insurance Company Liinited reported in (2009) 13 SCC 710 Hon'ble the Supreme Court in Paras 21 85 22 has held thus :- "21. In our considered opinion, the ratio ofthe 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 authorized 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 inake 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 paynient of the corapensation 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 sarae is on him. This proposition is absolutely clear on a reading of S'ection 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 ofthe MVA." Admittedly the deceased was driving the inotorcycle which was borrowed from its real owner namely Prakash Chand Chainwani, respondent no.6 herein, and met with an accident without involving any other vehicle. Therefore, the case on hand is squarely covered by the decisions of 10. 11. 12. the Supreme Court in Oriental Insurance Company Ltd. Vs. Rajni Devi (supra) and Ningamma 8s another Vs. United India Insurance Company Limited (supra) and it would be sufficient to hold that the deceased has stepped into the shoes of the owner of the vehicle. Hence, the provisions of section 163-A of the Act are not applicable in the instant case and as such the claim petition was not maintainable. In view of the facts and law discussed above, we are of the opinion that the claimants, who are legal representatives of the deceased, could not have claimed compensation under Section 163-A of the Act. Therefore, the appeal succeeds and the impugned award dated 21.08.2007 passed by the Claims Tribunal in Claim Case No.96/2006 is set aside. However, this will not debar the claimants/respondents to approach appropriate forum. The amount which is in deposit shall be allowed to be withdrawn. However, if the same has already been disbursed to the claimants, it will be open for the Insurance Company to recover froin the owner or the claimants, as the case may be. In the result the appeal is allowed. No order as to costs. _^i_ s<r- .Qudd' Judge Sd/- G. Minhajuddin Judge Rao