IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.Gl Misc. Appeal {C} No. 2006 APPELLANT N.A. No. 1 Versus RESPONDENTS Claimants ^ A'"J ^y Bajaj Alianz General Insurance Company Ltd. Through Branch Manager Branch Office, Dubey Complex, Pandri, Raipur (C.G.) 1., Smt. Mamta Patel, Wd/o Late Khorbohra, Aged about 24 Years, 2.0 Ku. Pooja D/o Late Khorbohra, Aged 9 about 2 8s 1/2 Years, 3Al^ Chandrahas S/o Late Khorbohra ^ aged about 07 Months, (Respondents No. 2 & 3 minor represented through natural guardian mother respondent no. 1) 9 4. Smt. Kumari Bai Patel W/d Ramkrishna @ Ramji Patel, aged about 45 years, All resident of Village Lohjhar, P.S. Chhura, Tahsil Chhura, District Raipur (C.G.) < 5, Ramkrishna @ Ramji Patel, age 48 years, S/o Manthur Patel, R/o Village Lohjhar, P.S. Chhura, Tahsil Chhura, District Raipur (C.G.) MEMORANDUM OF APPEAL UNDER SECTION(73 OF THE MOTOR VEHICLES ACT 1988 The appellant begs to-submit as under: HIGILCOURT OF CHHATTISGARH : BILASPUR M. A. (Q No. 484 of2006 Appellant Bajaj Alianz General Insurance Company Ltd. Versus Respondents Smf. Mamta Patel & others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I.M. Quddusi & Hon'ble Shri Prashant Kumar Mishra, JJ Shri Sachin Singh Rajput, Advocate for the appellant. None for the respondents, though ser^ed. ORDER (Orall ( Passed on this 25th day ofApril, 2011 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the Insurance Company against the impugned award dated 13.9.2006, passed by the First Additional Motor Accident Claims Tribunal, Link Court - Gariyaband, Raipur in Claim Case No. 47/2006, awarding compensation to the tune of Rs. 3,41,000/-. 2 . We have heard learned counsel appearing for the appellant and perused the lower Court record as well as the findings given in the impugned award. 3. None appears, nor any representation is made on behalf of the respondents despite service ofnotice. 4. The brief facts, in nutshell, are that the legal heirs of the deceased Khorbahra Patel filed a claim case under Section 163-A of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 13,50,OOO/- under various heads on the ground that on ^ 17.6.2004 at about 8.00 p.m. when the deceased was returning to his home at village - Lahchar by the motorcycle bearing registration No. C.G. 04 CF/4808, near Madheli the motorcycle got out of control and struck against a road side tree. In that accident Khorbahra Patel received grievous injuries on his head and succumbed to those injuries received in that accident. The owner of the motorcycle was the father (non-applicant No.2 Ram Krishna alias Ramji Patel) of the deceased. The claimants are the legal heirs of the deceased, who was driving the motorcycle as he took the motorcycle from his father, who was the owner. The vehicle was insured by the appellant/Insurance Company and the deceased was having the valid and effective driving licence at the time of accident. Learned Tribunal, having regard to the facts and evidence passed the impugned award, directing the appellant/Insurance Company to pay a sum of Rs. 3,41,000/- as compensation along with interest at the rate of 9% per annum. The liability to pay compensation has been imposed upon the appellant Insurance Company. It is well settled law that the person who borrowed the vehicle (motorcycle) from the owner steps into the shoes of the owner of the vehicle and thus cannot claim compensation from himself/owner. In the case of Oriental Insurance Company 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 owner of the motorcycle in question. He borrowed the motorcycle from its real owner i.e. his father. Therefore, he can be neither a third party nor can be said ^.^4^^ .>f'^\ %>-.. 'te-<, ^' -:?*» ^^-r 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 on hand the deceased was driving the two wheeler, owned by his father, and the claimants had filed the claim petition under Section 163-A of the Motor Vehicles Act, 1988, which reads as under : <( 163 A. 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 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 comperisation 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. 9. A bare perusal of the provisions of Section 163 A of the Act, 1988 would make it explicitly clear that the person, like the deceased in the present case, would step into the shoes of the owner of the vehicle. In the case of Nigamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710, following the .^^^ (Gy^ "w^^^"^ ^ 10. decision in Oriental Insurance Company Limited Vs, Rajni Devi and others (supra), the Hon'ble Apex Court has held as under : <(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 thaf 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-AoftheMVA. 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 was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.w 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, according to the insurance policy the insured has assured the sum of Rs. 1,00,000/- only to the owner-cum-driver (PA Cover for Owner-Driver of Rs. 100000), which is binding upon the appellant itself and therefore since the deceased was representative (son) of the owner and was driving the vehicle and stepped into the shoes of the owner, therefore, for this purpose will be treated as representation of the owner of the vehicle i.e. the owner of the vehicle. In the case of Rajni Devi (supra) it has been held by the ..^'^., ?^r Hon'ble Supreme Court that the liability under Section 163-A of the Act is only on the owner since person cannot be both, a claimant as also a recipient. However, for the said purpose only the terms of the contract of the insurance could be taken recourse to. According to the terms of the contract of insurance, the liability of the Insurance Company was confined to only Rs. 1,00,000/- and it was liable to the said extent and not any sum exceeding the said amount. ;»y 11. This Court also holds that the claimants would be entitled to get Rs. 1,00,000/- in accordance with the terms of the contract of the Insurance in which the appellant insurance company has assured to pay a sum of Rs. 1,00,000/- in accordance with the terms of the contract of the insurance in which the appellant Insurance Company has assured to pay a sum of Rs. 1 lacs in the P.A. cover for owner-driver. 12. In the result, the appeal is allowed in part. The impugned award dt. 13.9.2006 is modified to the extent that the insurance company is liable to pay a compensation of Rs. 1,00,000/- along with interesfat the rate of 9% per annum. No order as to costs. Sd/- I.M. Quddusi Judge Sd//- Prashant Kumar Mishra Judge Thakur