FAGE^Jo"^?t ^ CFOOOO'6%'^" BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR c M.A.(C) No. \ I 5b /201 O Ojvision BencB APPELLANT QEFENDANT N0.2 :1. IFFCO- TOKIO GENERAL , INSURANCE COMPANY LIMITED, ^ through the Branch Manager, Iffco- ^^$<;t' Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur(CG) VERSUS RESPONDENTN0.1 CLAIMANTNO. 1 1, Smt. Ahilya Bai Yadav Widow of late Ramgopal, Aged about 30 years. RESPONDENT N0,2 CAIMANT N0. 2 ^' 2. Kumari Priyanka D/o late Ramgopal, Aged about 08 years. (Minor) RESPONDENT N0.3 CLAIMANT N0. 3 3. Kumari Sushma D/o late Ramgopal, Aged about 16 years (Minor) RESPONDENT N0.4 CLAIMANT N0. 4 4. .Kumari Sakshi D/o late Ramgopal, Aged About 14 years (Minor) RESPONDENT N0.5 CLAIMANT N0. 5 ^' Kunvar singh S/o Late Jagatram Yadav, Aged About 60 Years RESPONDENT N0.6 CLAIMANT N0. 6 6. ^' Harkunvar Bai wife of Kuvnar singh , Aged about 50 Years ^ Respondent no. 2,3 and 4 are minor, represented through guardian mother - respondent no.1 All resident of Village Rajakapa, Police Station Takhatpur, District - Bilaspur(C.G..), PAGE No .-4:. , ~-i»iia>^Rwr.. • if-'ssssassr- RESPONDENT N0.7 DEFFENDENT N0.1 7. Surender KumarYadav, S/0 Kanhaiya ^ Yadav ,Resident of - Village Rajakapa, Police Station Takhatpur, District Bilaspur(C.G..), (Vehicle Owner) ^^f' MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTORVEHICLE ACT. 1988 HIGH CQURT OF CHHATTI8GARH AT BILA8PUR MISC. APPBAL (Cl ?ff0. £155OF 2010 APPBLLANT/ DEFENDANT N0.3. RBSPpNDBNTS IFPCO-TOKIO Geucral iusux-aiice Comp^ny T^mited. Versus Smt Aliilya Bai Yadav .aiid others. APPSAL U/S 173 OF THE MOTOR VEHICL®ACT. 1988 I'DB: Hou'bie Shrii.rw. Ouddusi 8& Hoa'ble shri Cr. Minhaiuddtn. JJ.i Presesit Shri Yashwaiit Siiigh Thakur»counsel for tlie appellant. Shri I,S» Sahu aad SIiri Akhtar Hussain, cozitiscl- for respoadent No,7. None for other respondents. ORAL OKDBR (Passed on 31st day ofO«Aober,20111 Per l.M. ©i&dd^si,J< This appeal has beea. filed by the appeIlaiit/IFFCO Tokio General Insiirao.ee Compao.y agaiiist the Iiiipugneei' award dated 16-08-2010 passed by fhe Nmth AddiUorial Motor Accident Claiius Tribunal, {F.T.C,}^ BllaBpur (for ahort 'fhe Claims Tribuaal') iu Claim Case No.49/2010 in. so far as it relates to lasteiiliig tlie Mability to pay coBipeiisation to tlie claimaats^ upoii the appellaat/ Iiisurance Caoipaoy. 2. Brief facts of the case ajccoixlio.g to versloa of the cl&mjLants are that appllcao.t/claloiant No.l was wife, applicaiits No. 2 to 4 were miiior chllclren aad applicaiits No.5 & 6 were pai'ente of flie deceased Ramgopal. Tlie deceased Ramgopal was golag to Takhatpur on tiie dM'ectloa of respondent No.7 - Sureiidra Yadav, to briiig labour on the uiotorcycle beai-iiig registt'ation No. C.G. 10-E.C./9148 whlch was owned by respondent No.7. WhUe retumirig froia Takhatpur, the said vehlcle got out of contix)l tlieieby daslled again.st a txee^ as a resulfc ofwhlch Raaigopal sustaiiied various ^rievous iojuries on his body, resuUiag ia his deatli. At the tLme ofaccicleiit fh.e deceased Ramgopalwas earniiig Rs,200/<N per day by doiiig agricultui'e work. 3. The clalmaiits i.e. unfortunate parents, wiclow arid minor chlldren of tiie deceased, preferred aa applicatioa before tlie Tribunal concemed, LUider Section 163-A oftlie Motor VelilcleB Act (for short <tlie Act9), clalmiiig coiiipeiisatioii to tiie ttuie of Rs. 5,25,000/- for fhe deafli offhe deceased, 011 various heads. 4. LeaiTied TribtUial on a close scrutiiiy of'the evMeiice, Biaterial placed on record aiid submissions luade by tlie paities, has awarded a suisi of Rs.3^84,000/- as coaipeiisatloa agahist tbe appellaat - Insujaiice Conipaiiy/iioa-applicaiit No. 2, along witii uiterest @ 6% per aiuiuin from tiie date of tlie application tUl its payiaent. 5. We liave heai'd leariied counsel appeariiig for the paities aad perased fhe records ofthe Tribuual, 6. It is not disputed fhat tlie deceased borrowecl two wheeler (iiiotorcycle) froiD. the owner wifh liis consent as tlie owuer had deputed lilm to briag labourers Ibr tlie purpose of repakin.g of his lious^. Though tlie cleceased Iiad gone for fhe work of th.e owiier of fhe m.otoi\;ycle but fhe fact remairis that he borrowed luotorcycle fioiii tlie owner wlfh. his consent and lie was not ao. eiuployee offhe owner ofthe iiiotoreycle. 7. Iu fhe above ciTcuiiistaaces, tiie claim petltioii filed tUider Section 163-A offlie Act was iiot iiiaintairiable at all. 8. Hon^ole fhe Supreme Court m Orientml Iifwurwtcc Company L1&., Vs. Rc^rd&evt^ repoiled in (2008| 5 SCC 736 has held that Section 163-A of tlie Motor Vehicles Act, 1988 cannot be sald to have aiiy appllcatlon ia regard to aii accMent whereiii tiie owiier of fhe iiiotor vehicle liunself is iavolved. It was fui'tlier held tiiat the liability u/ s 163-A of flie Act 1s only on tlie owner of the vehicle siace a person casxaot be bofli, a claiinajiit as also a recipient, fhe heiis of fiie deceased could aot liave laaiiitauied a claloi iii terms of Sectlon 163-A of tiie Act 9. Further, ixi Ningammja and citi^ther ys< Ufjif<Bdl Jtidia Aisarciifiee. Cwnpwty Lin^ltcds reported iu. 2009 (131 SCC 710, tlie Supreuie Court whlle referi'iag to tlie earlier deciBion lii Oiiental Insurao.ee Coiiipaay Ltd., Vs, Rajiiidevi (Supra), held vide pai'as 21 & 22 as foUows: a21. In our coiisidered opmion, the xatio of the decision io. Orieiital Insui'aiice Co. Ltcl., case 1s cleaxly appllcable to fhe facts of tlie pi'esent case* In fhe present case, the deceased was not fhe owner oftlie niotorbike iri questloii, He bonowed the said BaiotoA'bIke froiii its real owiier. The deceased caD.not be lield to be ari employee of tiie owiier of tiie iiiotorbll^e altiiough he was autliorlzed to drive fhe said veliicle by its owner a&id, therefore, he would step iato fhe shoes of tlie owxier of the motorbike. We have already extracted Section 163-A of fhe MVA hereiabefore, A bare perusal of the said provision would ixiake it expllcitiy clear th.at persons llke the deceased iii flie present case would step mto flie slioes oftlie owner oftiie veliicle, 22. In a case where fhe victiiu died or wliere lie was permaiieufly disabled due to aa accident arisiiig out of tiie aforesaid iiiotor veliicle in tliat event the liabllily to iiiake payiiient of the coinpensatlon is 011 tlie iiisuraiice cojaipaiiy or fhe owner, as the case may be as provided urider Section 163-A of the Act. But if it is proved tliat .K- tiie drivei is flie owner of fhe Biotor vehicie, ia that case th.e owner could not Ixiiiisetf be a recipient of coijapeiisation as flie liablllly to pay tlie same is on him. This propos!tk?n is afcsohitely cleai" on a readiag of Sectlon 163-A of flie MVA. Accordingly, tlie legal represeatatlves of tlie deceased who liave stepped iiito tlie shoes of tlie owner of the isiotor vehicle could not liave claimecl conipensation under Sectlon 163-A ofMVA/" 10. In view of flie above, fhe clakii petition under Sectioa 163-A of tiie Act, was not mamtairiable €itall aiicl therefore, tlie .^v^^ /y^ -fc<^1 XS^-""^! | ^-..."^/ •:^:5^^^ 4 appellaiit/ Insurao.ee Coiapaiiy has wrongly beea dii-ected to pay compeiisation to flie claiuaatits. Besides tfais, !t was not a package pollcy of flie two wheeler aiid it was only a fliird paity pollcy witli P.A. of flie owner-cujii-driver. Siiice flie two wheeler was not being driven by tiie owiier hliiiself^ fhe P.A. to the llmited liabllily ofRs. 1,00,000/- would iiot be covered ia case of tlie death of fhe borrower of tiie motorcycle i,e. deceased. 11. In tiie result, we allow tliis appeal, set aside flie liiipugned award aiid exonerate flie appellant/lasuraace Compao.y to pay couaipeusatiou to the claimaiite. However, it wlll be opeii for the claiinaiits to file a fresh claim petitlon. Siace we have held tliat flie clalm petitioii was aot liaamtauiable under Section 163-A of fhe Act, tiie claiDiaiits would not be debaA'red from fillgig tlie claim petition uiider provisious of law avallable to tliem, 12. No order as to costs, Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Kvr