-i- c-i ^' IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (0 N0. •3.C: / /2010 APPELLANTS LAIMANTS 1.x 2. \l> ^.^•^w"~!<y Ishwari Bai, aged about 28 Years^ W/o Manoj Kumar Manoj Kumar Baghel, aged about 32 Years, S/o Badku Baghel Both R/o Through VijayKumar, StreetNo.3,Block No. 1/C, Sector- 6, Bhilai, Tahsil - Bhilai, Distt. Durg, (C.G). VERSUS / RESPONDENTS :- Ln-AoBlicantNo^ 1. 1. ^" Rajendra Kumar Dewangan, S/o Khorbahra Ram, R/o Street Avenue, Qr. No. 2E,Zone-3, Khursipar Bhilai, Tahsil & Distt. Durg, (C.G.), (Owner oflndica CarNo. CG-12- 6352) Non-Applicant No. 2. 2. Jaikar Pahare, S/o Jhumuklal Pahare, R/o Om Nagar, Jarhabhata, Thana- Civil Line, Distt. Bilaspur (C.G.) (OwnerofTruckNo. UP-75-A-5631) MISCELLANEOUS APPEAL U/S 173 QF THE MOTOR ,r HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.C.No. 362/2010 & M.A.C. No. 363/2010 Between APPELLANTS RESPONDENTS Ishwari Bai and another Versus Rajendra Kumar Dewangan and another DB:- HON»BLESHM I.M. QUDDUSI & HON'BLE SHRI N.K. AGARWAL, JJ PRESENT:- Shri B.S. Khanuja, Advocate for the appellant. ORAL ORDER (4-10-2010) Per N.K. Agarwal, J. List is being revised. Case called out. No one is present for the respondent. Heard finally. Order dictated in open court. 1. M.A. No. 362/2010 and M.A. No. 363/2010 are being disposed of by this common order as both the appeals arise out of the sarae accident. These appeals have been preferred against award dated 13-1-2010 passed by the XIIth Additional Motor Accident Claims Tribunal, Durg in claim case No. 76/2009 and 77/2009 dismissing the claim petitions. Brief facts of the case are as under:- On 7-5-2006 p.m. appellant No. 2 was going from the Bilaspur to Bhilai in Indica car bearing registration No. CG 12/6352 and his two children namely Deepak and Ashish were sitting with him in the car. The appellant No. 2 was himself driving the car. At about 4.45 p.m. .--r. 'F ;;t?<\ Si'^ 1 r^^i'^^ i near Bhojpur turn the Indica car dashed a stationary truck bearing registration No. UP 75/A/5631, as a result of which, Deepak and Ashish died due to the injuries sustained in the said accident. The mother and the father who was also driving the Indica car have preferred claim petition claiming compensation of Rs. 6,75,000/- and Rs. 7,50,000/- for the death of Deepak and Ashish respectively, against the respondent No. 1/owner of the Indica car and respondent No. 2/owner of the truck by filing two separate claim petitions under Section 163-Aof the Motor Vehicles Act, 1988 (briefly 'the Act'). ii. In the written statement filed by respondent No. 1, it was pleaded that the driver was in drunken condition. He had taken the vehicle with the consent of his mother. Offence under Sections 304-A, 279 and 337 of the Indian Penal Code in Crime No. 103/2006 was registered against the appellant No. 2 in P.S. Hirri which is pending. It was further pleaded that the appellant No. 2 was himself responsible for the accident. They have filed claim petition by suppressing material facts. Therefore, the claim petitions being not maintainable deservre to be dismissed. iii. Both the parties led evidence iv. Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed, dismissed the claim petitions on the ground that the claimants have failed to prove their claim. 4. We have perused the record of the Tribunal. Important questions arise for decision making in the instant appeal are: i. Whether a person, who steps into the shoes of the owner can maintain claim petition under Section 163- A of the Motor Vehicles Act, 1988 ? ^).•^ :.,>"^y ii. Whether a person who himself was negligent in driving the vehicle would be entitled to conipensation under Section 163-A of the Act ? 5. Learned counsel for the appellants would not dispute the fact that the appellant No. 2 was not carrying his two sons in the Indica car bearing No. CG12/6352 at the time of accident in the capacity of an employee i.e. driver of the vehicle and, in fact, he borrowed the vehicle from the owner to bring his wife and two sons from. Bilaspur. The appellant No. 2 was not owner of the motor vehicle in question. He borrowed the said vehicle from its real owner. He cannot be held to be an employee of the owner of the vehicle, although he was authorized to drive the vehicle by its owner and, therefore, he would step into shoes of the real owner of the vehicle. 6. Chapter XI of the Motor Vehicles Act, 1988 deals with the motor vehicle against third party risks. By Section 146 of the Act, it was made necessary for the user of a motor vehicle in public place to have a policy of insurance against third party risks. Section 147 describes the requirements of policies and limits of liability of such statutory policies. Section 149 mandates the insurers to satisfy judgment and awards against persons insured in respect of third party risks. Section 163-A provides special provision as to payment of compensation on structured formula basis. Section 165 empowers the State Government to constitute one or more Motor Accident Claims Tribunals to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles or damages to any property of a third party so arising or both. A brief analysis of the above provisions would reveal that the claims Tribunals have been constituted for the purpose of adjudicating upon the claims for Wifffm WMi:y[V^ ~;"^t I ^,^^; ^^^"'w' ^y' compensation in respect of accident involving the death of or bodily injury to a third party arising out of the use of the motor vehicle. 7. Hon'ble the Supreme Court in case of Oriental Insurance Company Ltd. vs. Rajni Devi; reported in (2008) 5 SCC 736 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 under Section 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. Undisputedly, the appellant No. 2 was not the owner of the Indica car. He borrowed the car from its real owner. He cannot be held to be an employee of the owner of the Indica car 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 motorcycle. 9. In a case wherein the victim died or where he was permanently disabled due to the 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 unde'r 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 liability to pay the same on him as held by HonlDle the Supreme Court in case of Ningam.ma and another vs. United India Insurance Company Limited; reported in (2009) 13 SCC 710. 10. Here in the instant case, the deceased are sons of the appellant No. 2 who stepped into the shoes of the owner of the Indica car would not have claimed compensation under Section 163-A of the Act. The deceased were also cannot be termed as third party being the sons of the deemed owner of the vehicle at the time of accident. 11. For the above reasons, in our considered opinion, the claim petition filed by the appellants under Section 163-A of the Act is not maintainable against the real owner of the Indica car. 12. However, in order to appreciate the second question regarding raaintainability of the claim petition under Section 163-A of the Act by a person who himself was negligent, it would be appropriate to reproduce Section 163-A of the Act which reads thus: <tl63A. Special provisions as to payment of compensation on structured formula basis. 1[163A. Special provisions as to payment of compensation on structured formula 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 authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use ofmotor 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, flpermanent 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 /ts^\ mimi8i^^SS9^Si9iifflSS- •^ 1 6^^ the cost of Uving by notification in the Official Gazette, from time to time amend the Second Schedule." 13. Section 163-A of the Act was brought into the Motor Vehicles Act, 1988 by Act No. 54/1994 by way of a social security scheme to provide for a new predeterniined structured formula for payment of conipensation to the road accident victinis on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in the said section there could be no inanner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the inotor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. The above provision has been analysed in case of Deepal Girishbhai Soni -• v- United India Insurance Co. Ltd. reported in 2004(5) SCC 385, in which Hon'ble Supreme Court has held in para 42 and 66 as under :- "42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note %A ^^m appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in column Nos. 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a niotor vehicle. 66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Conipensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or •y^r 'l ...-A II1 ^•:y ''-^^s-^ any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." 14. In view of the law laid down by the Hon'ble Apex Court in the above referred case, it would be crystal clear that Section 163-A of the Act covers the cases where even negligence is on the part of the victim or the claimant. It is by way of an exception to Section 166 of the Act and the concept of social justice has been duly taken care of. 15. The Division Bench of Karnataka High Court in case of Oriental Insurance Co. Ltd. -v- Salma and others reported in 2008 ACJ 1197 placing reliance upon the above quoted Supreme Court decision, held the petition under Section 163-A oftheAct is maintainable even if the negligence is on the part of the victim. The Division of High Court of M.P. in case of Ramkanyabai and others -v- Unav Transport Co. (P) Ltd. and others reported in 2007 ACJ 2003 has also taken the same view. 16. Therefore, the claim petition is certainly maintainable against the respondent No. 2 inasmuch as the appellants are third party so far as respondent No. 2 is concerned and their claim petition under Section 163- A of the Act is maintainable even in case where the negligence is on the part of the appellant No. 2. This aspect of the matter has not been considered by learned Tribunal. 17. In view of the above, we are of the opinion that the matter requires reconsideration at the end of the Tribunal. 18. Therefore, we allow these appeals in part, set aside the impugned award dated 13-1-2010 and remit the matter back to the Tribunal for decision afresh. The Claim petitions shall be restored to its original number and they shall be decided in the light of the obser^ations made above. The Tribunal shall afford opportunity to both the parties to adduce evidence and argue their case. 19. The Tribunal shall decide the niatter expeditiously. 20. The records of the Claims Tribunal shall be sent back forthwith. Sd/- I.M.Quddusi Judge Sd/- N.K. Agarwal Judge e