Oivision Bg.ncb LN THE HON»BLEHIGH COURTOF CHHATTISGARH AT BILASPUR MISCELLANEOUS APPEAL N0. 1^3. /2011 APPELLANT ^ PONDENTS ^ / ^ » ^A .^Y/i77/^- ^ /^/y ./' ly~>y .6" ^0''^' ^' y ^'^' ^-^r !-^ ^ 5, Bajaj Alliance General Insurance Com. Ltd. Branch Office Shop No. O.C. -2 Chhattisgarh, Complex, Near Raja Hotel, Bilaspur, Chhattisgarh (INSURER) VERSUS Smt. Kamla Bai, widow of Munna @ Jaleshwar Gandharwa, aged about 32 years Kumari Seema Gandharwa, daughter of Late Shri Munna @ Jaleshwa Ghandharwa, aged about 18 years Kumari Suman Ghandharwa, daughter of Late Shri Munna @ Jaleshwa Ghandharwa, aged about 17 years Kumari Ritu Ghandharwa, daughter of Late Shri Munna @ Jaleshwa Ghandharwa, aged about 14 years Kumari Pritabha @ Ranu Ghandhanva, daughter of Late Shri Munria @ Jaleshwar Ghandharwa, aged about 11 years ^ ^./ Kumari Heena @ Aanchal Ghandharwa, daughter of Late Shri Munna @ Jaleshwar Ghandharwa, aged about 9 years Respondent No. 2 to 6 are minor childrens, mother of Smt. Kamla Bai widow of Late Shri Munna @ Jaleshwar Ghandharwa, aged about 32 years ^—y Smt. Jhulbai, wife of Bhagela Ghandharwa, aged about 60 years, resid^nt of Village Bharni, Post Sakri, ^-8, A Thana Chakarbhata, Tehsil Takhatpur, District Bilaspur, Chhattisgarh Bhagela Ghandhanva, son of Late Shri Bisahu Ram Ghandharwa, aged about 63 years, resident of Village Bharni, Post Sakri, Thana Chakarbhata, Tehsil Takhatpur, Districf Bilaspur, Ghhattisgarh (CLAIMANTS) Dhaniram, son of Late Shri Jhitku Ram, age not known, resident of Village Karkha, Post Kargikala, Thana Kota, Tehsil 85 District Bilaspur, Chhattisgarh (OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 /"• HIGH COURT OF CHHATTISGARH AT BIIA8PUR APPELLANT Misc. AupealcNo. 122 of 2011 : Bajaj AJliance Qeneral Insurance Co. Ltd. RESPONDENTS VBR8U8 : Smt. Kamla Bai & ofhers APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLBS ACJI' DB: Hon*ble Shri Justice N.K. Agarwal fe Hoatble Shri Justice R.L. JIiaawar. Present .: Shri Sachin Singti Rajput, Advocate for the appellant. Shri Samir Stngh, Advocate for respondent No. 1 to 8. ORALORDBR (Passedoa IS.04.2011) Per : N.K. A^urwal, J. 1. The instant appeal has been preferred by the appellant against the order dated 11.09.2010, passed by fhe IXfh Additional Motor Accident Claims Tribimal (FTC), Bilaspur (for short the Tribunal') in claim case No. 55/10, awarding compensation of Rs. 4,24,500/- in favour of the claimants and as against the appellant/insiirance company and the owner ofvehicle i.e. respondent No. 9join(ly and severally. 2. Brief facts of the case according to the appeUant are that, on 04.06.2009, Munna @ Jaleshwar Gandharv (since deceased) while going towards village Kargha by motorcycle bearing registration No. CG-10-EF-0765, near vUlage Kargikhurd lost his balance and met with an accident, as a ' /: •ieunqpj,aii^jo spjoooj 9ip pasnjsd os{6 pue S9i^jed sip joj psunoo paiueai 91^ pjeaq 9ABq Q/A '9 ^uenaddB 9V[t ^ucB'Se uo^Bsusdmoo SB -/OOS't'S't' 'sy SUIPJBAB pJBM^ QV^ p3SSB(J ^UOJM SBq IBUnqUJ, P9U.IB9I 9L[l pUB A«lJO 8^9 9q^ UI 9iqBUjre^Up3Ut ^OU SBM J[3SII uoi^Rad uirep oq^ ^ijed pJiift B Sixioq ^ou tfp9SB909p QIR <9joj9j:9qj, •ap^ojoioui aq4 jo JQUMO 9q^ jo sooqs ai^ oiui d9^s PinOM 9q <9JOJ3J9lp <pUB J9UMO s^i ^Cq apiqaA pies 91.^ 9Aup o^ pazpoq^n®SBM aq qSnoq^ie spAojo^oui aiy jo JQUMO 9t[l jo 99^oidui8 iie oq o^ ppq 9q ^omjeo posBaoap ^uappoa jo aiup aq^ IB 8pAbjo^oux SiiiAup SBA oqA pssBaoap 9t[^ JO S9ApB^U9S9J;d9J {e§91 31^ y(q p9jjaj9jd U99q saq mrep 4iuiqns pinoM ym\]9ddT8 sv^ JQJ SuureaddB lasunoo paujeaq •g ^uouLfed s% iip VK)vp33f[ddT3 jo 9^®pQq^ mo^ mnuue jad ^uaojad 9 @ ^SOJQ^UT l^IM §UOp A[[ej:8A9S plIB ^UIOf J9UMO pUB tUBH9ddB 3q^ isurege SB pue s^uemreio aipjo JTIOABJ m -/OOQ'^S^ jo uins i8 papjBMB 'sai^ied 91.0. Aq 9pBux suoissimqns pue paoaid IBp9^UI <p8{ 90U9pIA9 JO ^UIITUOS OSOp B UO 'IBUnqUJ, 9qj, •^ •^UapTOOB pIBS 81.R UI p9SB909p jo q^asp sq^ JQJ -/000<S6'Z, 'sy jo 9um atft o^ uoryesuadmoo gumirep <^oy SQpiqaA Jo^o^ aip jo V-e9I uopoag jspun (eunquj, ai{^ ajojaq uopBonddB ue p9jj9j9jd s^iremrep siij, •£ •^USppOB preS 81ft m psure^sns saunfui Qq^ o^ paqmnoons aq i.[3iqM jo ^ins9J V^te^-^^^ -?^ 1 •^,^-^^ L 7. Chapter XI of fhe Motor Vehicles Act, 1988 deals wifh the motor vehicle against third party risks. By Section 146 of the Act, it was made necessaiy for fhe user of a motor vehicle in public place to have a policy of insurance against third party risks. Section 147 describes fhe requirements of policies and limits of liabilily of such statutory policies. Section 149 mandates the insurers to satisty 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 Oovemment to constitiite one or more Motor Accident Claims Tribunals to adjudicate upon claims for compensation in respect of accidents involving fhe deafh of, or bodily injuiy to, persons arising out of the use of fhe 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 Tnbunals have been constituted for the purpose of adjudicating upon fhe claiins for compensation in respect of accident involving the death of or bodily injuiy to a fhird party arising out offhe use ofthe motor vehicle. 8. Hon'ble the Supreme Court in case of OrtenteiX Insurance Com.pemy Ltd. vs. Ra/ni Devt; 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 fhe motor vehicle himself is ..^iT38%>. /i^ Vsa^} "•^^,/ involved. It was further held that the liability under Section 163-A of fhe Act is only on fhe owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of ftie deceased could not have maintained a claim in tenns of Section 163-A of the Act. 9. In a case wherein the victim died or where he was permanently disabled due to fhe accident arising out of the aforesaid inotor vehicle in fhat event the liability to make payment of titie compensation is on the Insurance Company or the owner, as the case may be as provided under Section 163-A of fhe Act But if it is proved that fhe driver is the owner of fhe 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 HonTole the Supreme Court m case of Mngeinuna emd einother vs. United Indta Insurance Company Limite^. 10. Accordingly, ftie claimants who are fhe legal representatives of the deceased who stepped into shoes of the owner of the motorcycle could not have claimed compensation under Section 163-A of the Act and fhe leamed Tribunal went wrong in awarding compensation to them. 11. At fhis stage, we have perused fhe policy of insurance filed by ftie appellant/Insurance Company. Under the policy, the appellant had undertaken the risk of owner-driver of 12009 (13) SCC-7IO ';\'\ '"^." r the vehicle to the extent of Rs.1,00,000/- by taking a premium ofRs.50/- fherefor. 12. Although Section 147 of the Act does not require an Insurance Company to assume risk for the death of or bodily injmy to the owner of the vehicle but the appeUant/Insurance Company has assumed fhe risk of owner-driver by entenng into fhe special contract with the owner of (he vehicle by chai^ing additional premium of Rs.50/- therefor and, fherefore, the appeUant/Insurance Company certainly owe a liability towards legal representatives of the deceased i.e. deemed owner of the vehicle to the extent of Rs. 1,00,000/-. We held accordingty. 13. For fhe foregoing, the appeal is allowed in part. The award is modified to the extent ftiat fhe appeUant/Insurance Company is liable for payment of compensation to the claimants to fhe extent of Rs.1,00,000/- only instead of aniount awarded by the Tribunal. The above amount of compensation shall cany interest @ 6% per annum from the date of application as awarded by the tribunal. The appeUaiit/Insuiance Company is granted tliree monfhs' time for payment of above compensation. Sd/- N.K.AgarwaI Judge Sd/- R.L. Jhanwar Judge Sahu