rs ^.".^- ^— ..„.. IN THE HIGH COURT JUDICATURE AT BILASPUR Misc. Appeal (c) No. 't> 7 <—G^'200T^ APPELLANT Insuran^^ '^^ (Insurer) The Orientat Company limited, through Divisional Manager Orientat Insurance company limited d.o. 1 ^Medical college road, ^ near Kutchery chowk raipur.^i:-^ r" Versus RESPONDENTS: ^ 1. Smt. Girja devi pandey ^laimant W/o Ramavtar pandey aged 40 years pandey S/o .^.- 'v 1^^^ W.}.€'°] 2. Ambar :/, <il-t' Ramavtar pandey aged 18 years . Both residence of Shankar Nagar Kumhari P.S. Kumhari Disst. Durg Driver of vehicle 3. Manoj Kumar S/o Jadhuram dhruw R/o Jondhi P.S. Abhanpur Disst. Raipur. Local Resident M/s Hora Transport Co., through Proprietor M/s Hora Transport Co., Ltd., Phaphadih, Raipur, Dist. Raipur (C.G.) Owner of vehicle Insurer of truck Ownerofmotor cycle '^ <? 4. v ^ 6 Proprietor M/s Hora Transport Co., Ltd., Phaphadih, Raipur, Dist. Raipur (C.G.) . United Insurance Co., Ltd., through its Divisional Manager, Kutchery Road, Raipur (C.G.) Ramavtar Pandey S/o Late Ramprasad Pandey, R/o Shankar Nagar, Kumhari, P.O.Kumhari, Durg (C.G.) r^ HIGH COURT OF CHHATTISGARH, BILASPUR DB: HON'BLB I.M. QUDDUSI fis HON'BLB PRASHANT KUMAR MI8HRA, JJ M.A(clNo.872 OF 2008 Vs. APPBAL UNDER SECTION 173 OF THB MOTOR VEHICLESACT, 1988 APPBARANCE Mr. Abhishek Siaha, Counsel for tlie appeUaat, Mr. S.C. Verma, Counsel for respondents No. 1 & 2. Mr. Dashrafh Gupta, Counsel for respondent No.5. Per I.M. OUDDUSI, J ORDBR IQRAL} (01.04.2011) (1) This appeal has been filed by the iasurer agaiast tiie impugned award dated 02.03.2007 passed by the VIII Additional Motor Accident Claims Tribunal (FTC), Raipur (C.G) ia Claiai Case No. 52/2005 HI so far as it relates to the liabUity imposed upon the appeUaat which was tlie iasui'er of fhe inotorcycle driveu by tlie deceased at tlie tmie of accident (2) Brieffacts offhe case as per tiie version offhe clamiaiits are fhat on 24.06.2005 deceased Akash Paadey was gomg towards Raipur on niotorcycle bearing Regn.No. C.G.04- CF/4370 belonged to respondeut no.6. Rakesh Kuinar Shukla aad Hukum Suigh were sittiag as PiUion riders. On fhe way, respondent no.3, Maaoj Kuniar, who was driviag the Truck bearing Regn. No. C.G.ZC/0867 suddenly parked it in tlie middle of tlie road neai' Railway crossiag witliout Uiere beiag aiiy precaution or iadicator. At fhe saaie tinie at 1 a.ia., tlie tire of fhe niotorcycle which was beiag driven by Akash was burst aad conseauently it became unbalanced APPELLANT The Oriental Insurance Coxupany Limited RBSPONDENTS Smt. Girija Devi Pandey and ofhers :/i.^^ .•te'T.^^^ 11 t. v ./ff ^.'^^^" @ and hit fhe staading Tnick from back side, as a result of which, Akash died on tiie spot. The piUion rider of the vehicle Rakesh Kuiaar Shukla was also badly iajured aad dunng fhe course of treataient he died ia fhe hospital. At fhe time of accident the deceased was aged about 22 years. He was a driver by profession and was earain.g Rs.6000/- per nionfti. The claiaiaats beiag dependents/legal representatives have filed claun petition for fhe award of coinpensation to tlie tune ofRs.7,65.000/- on various heads ui Ueu ofdeafh ofthe deceased. The leamed Clakns Tribunal has held fhat ia tlie night at 1 a.m. of 24.06.2005 respondent no.3 who was driviag the Tinck bearing Regn.No. C.G.04-ZC/0867 on N.H.No.43 in a rash and negUgent niaaner has suddenly parked on the iniddle of fhe road aad fhe niotorcycle has dashed fhe said Tinck froin back side, as a result of which, accident took place aad the deceased died on account of uijuries sustained by hiai m fhe said accident Therefore, contaibutoiy negUgence was therc on hini to fhe extent of 50%. In Para 16, fhe Tribunal has also discussed about fhe contributory negUgence of the deceased driver on the basis of fhe facts and circuBistaaces of fhe present case. The claimaats have exammed Hukum Smgh as A.W.2, who is aa eye-witaess to fhe iacident He was sittiiig as piUion rider on fhe inotorcycle and also sustaiaed iajuries in fhe said accident^ but suivived. He stated ia his cross examiaation fhat fhey have seen the Truck from a distaLace of 20 ~ 25 ft. The Tribunal held fhat fhough fhe truck was seen from a distaace of 20- 25 ft., tlie driver offhe motorcycle cozild not properly control fhe vehicle because fhree persons were travelmg on fhe motorbike. Therefore, it is proved fhat there was 50% contaributoiy negUgence on fhe part of deceased. The Tnbunal has awarded a total coiupensation of Rs. 3,13,000/-, which tlie claimants are entitied to receive from fli^ AppeUant and respondent No.5. Admittedly, fhe inotorbike was borrowed by fhe deceased driver froni its owner respondent no.4 and fherefore, he .c^^ ^Y^ ^sS^ j ^ stepped iato tlie shoes of tlie owner. Siace tiie driver is the owner of the inotorbike, ia that case the owner cannot claiin compensation from himsetfas fhe UabiUty to pay fhe same is on him. 5. HonT^le fhe Supreme Court ia case of Oriental Insurance C^mpany LteL^ Vs. Ka/nidevi; reparted in (2003) S SCC 736 has held that section 163-A of fhe Motor Vehicles Act 1988 caiinot be said to have aay appUcation ia regard to aii accident whereia the owner of tlie inotor vehicle liiinself is iavolved. It was further held that the UabiUty u/s 163-A of the Act is only on fhe owner of tlie vehicle since a person cannot be botli, a clamiaat as also a recipient, fhe heirs of the deceased could not have niaiataiaed a claimL ia tenns of Section 163-A ofthe Act. 6. Further ia case of Mnflamma and another Vs. United Injdia Insurance Cenwams Limited reyorted in 2009 fl3f SC'C 710 the Supreiae Court whUe referriag to fhe case of Orienial Insurance Company Ltd., Vs. Rajnidevi (Supra), held vide Paras 21 & 22 as fi)Uows: <(21. In our considered opiaion, the i-atio of the decision ia Oriental Insurauce Co. Ltd, Case is cleaily appUcable to fhe facts of the present case. In the present case, the deceased was not flie owner of tlie in.otorbike ia question. He boiTowed fhe said motorbike froin its real owner. The deceased caanot be held to be aa employee of the owner of the niotorbike alfhough he was aufhoiized to drive the said vehicle by its owner aad, fherefore, he would step in.to fhe shoes of fhe owner of fhe inotorbike. We have already extracted Section 163-A of the MVA hereuibefore. A bare perusal of the said provision would inake it expUcitly cleai' fhat persons Hke the deceased ia fhe present case would step iato fhe shoes of the owner of the vehicle. 7. 8. 9. 22. In a case whereia the victiin died or where he was permanenfly disabled due to aa accident arisiag out of the aforesaid niotor vehicle in that event the UabiUty to inake payinent of fhe coinpensation is on the iasurance Corapaay or the owner, as fhe case may be, as provided under section 163-A of the Act. But if it is proved tliat the driver is the owner of fhe niotor vehicle, in fhat ease ftie owner could not hiiasetf be a recipient of compensation as tlie UabiUty to pay fhe same is on him. Accordiagly, tlie legal representatives of flie deceased who have stepped iato fhe shoes of flie owner of fhe niotor veliicle could not have claimed corapensation under Section 163-A ofthe MVA." In fhe iastaat case, since flie deceased was authorized to drive tiie inotorbike by its owner, he has stepped iato fhe shoes of fhe owner and ui view of fhe above position of law, his legal representatives beiag claioiaats are not entltled to get conipensation froin fhe owner. Siace tlie deceased was hioiself negUgent to fhe extent of 50%, fhe claimants caanot claini conipensation of fhat part froin fhe iasurer of motorcycle that is appellaat hereia. In fhe result, fhe appeal is allowed ia part. The UabiLity to pay corapensation ia respect of contodbution of the appeUaat fixed in fhe iaipugned award to fh.e extent of 50% is set aside, The total loss of dependency has been assessed as Rs.3,13,000/-, 50% of which comes to Rs.1,56,500/-. Therefore, the claiinants would be entitled to get Rs.1,56,500/- froin fhe Uuited Insurmice Conipaay Lunited, insurer ofthe Truck No. C.G.ZC/0867 along-with mterest@ 7.5% per aaniim from titie date of fhe flliag of fhe clami petition tiU its payraent is niade. •»^-; .-^ d^ 10. Leamed Counsel for ftie appeUaat submits that tiie appeUaat has deposited Rs.50,000/- u/s 173 ofthe MotorVehicles Act for filing th.is appeal which is lyiag ia deposit. If fhe said amomit is not disbursed to fhe clamiants, tlie same shaU be refunded to fhe appeUaat, 11. Rs.1,00,000/- shaU be kept in fixed deposit in aiiy Nationalized Baak in. the jomt name ofbotli fhe claimants for a period of six years. Out of the remammg part of fhe tmpugned award, Rs.40,000/- shall be disbursed to respoudent no.l and the rest of flie amount shaU be ^lisbursed to respondent no/2. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge