/^Tl^ ^'/ IN THE HIGH COURT OIi'CHHATTISGARH AT BILASPUR M.A. No.,^"-^ / 2006 APPEIAANT ^e}efendant No.2 ^OriRntfll iTisurance Coropany I^tri. Throiigh, nivisional Manager, Divisional Office No. 1, MBdeena Rnilding, Kacahri Chowk; Jail Road, Raipnr (C.G.) Versus- RRSPONDENT :.1:^>"J .1 Smt. MaliesTiiya Rai, 28 years; Claimant No. 1 / Wri/o AslikaraTi Njshad. RESPONDENT ^y'2-f Kii. Tikeshwari, 8 yeara, Claimant. No.2 D/o Ashkaran Nishad. RESPONDENT ^: 3/ Gumaii, 6 years, Claimant No.3 / S/o Asl-ikaran Nishad. RESPONDENT 9~t <C Ku. Geetanjali, 5 ycars, Claimant No.4 D/o Ashkaran Nishiid. RRSPODNENT daimaiit No.5 5^ Smt. Unnila Bai, 50 years, W/o nutelaharain Nishad. RRSponflents No. 2, 3 and 4 are Minor, throngh natiiral giiaTrlian Mother Maheshiya Bai. All R/o Vfflage- Newdha, Post Office- Kcsda, P.S. Nevra, District- Raipiir (C.G.). RESPONDENT ?--: 6. Sbri Tectearam Nishad, ^ Defendant No. 1 S/o Sliri Sunder La) Nishari, R/oViIlage- Nevdlia, Post Officc- Kesda, P.S. Nevra, District-Raipur(C.G.). MISCELLANEOU APPEAL imnRR SECTION 173 OPTHE MQTQR VEIIICLES ACT. 1988 ^.^-^•WiS^^ 'f?°£^ H !s 'Ss-aeft'Si ^ "v^^'-^"^ Si ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (Q No. 225 of2006 APPELLANT RESPONDENTS Oriental Insuraace Company Ltd. VBRSUS Smt. Maheshiva Bai & others (APPEAL UNDER SECTION 173 OP THE MOTQR VEH!CLES_ACT) DB: Hon'ble Shri Justice N.K. A^rwal ^ Hon'ble Slui Justice Gulaai Minhajuddin. Preseat : Shri Ajay Mishra, Advocate for the appellant. Sliri MK Bhaduri, Advocate for respondent No. 6. ORAL ORDBR (Passed on 23.06.2011} Per ; N.K. Agarwal, J. 1. The uistant appeal has been preferred by the appellant against fhe award dated 05.07.2006, passed by the Vtlth Additional Motor Accident Claims Tribunal Raipur (for short the Tribunal') in claim case No. 35/05, awardin^ compensation of Rs. 3,14,000/- tn favour of the claimants and as against the appeUant/insurance company. 2. Brief facts of the case according to the appellant are that; on 01.05.2005, Aaskaran (since deceased) along wifh one Khedu Ram, while coming from Hafhbandh by driving Hero Honda motorcycle bearing registration No. CG-04-CH-2214, all of sudden, near one culvert, lost his balance over the motorcycle and collided wifh unknown vehicle, as a result of which he succumbed to ftie injuries sustained in the said accident. SW.fW-,^. •\^;-^.t\ y',/"~~vi, «K\^~'«ss^ ^ ^ n..!? 'y ?'~<r^s:'^t1^ 3. The claimants preferred an application before the Tribunal undcr Section 163-A of the Motor Vehicles Act, claimirig compensation to fhe ti.me ofRs. 7,58,000/- for the death of deceased in fhe said accident. 4. The Tribunal, on a close scrutiny of evidence led, material placed and submissions made by fhe parties, awarded 3,14,000/- in favour of the claimants and as against the appellant along witli interest @ 9 percent per annum from the date ofappllcation till its payment. 5. Leamed counsel appearing for fhe appellant would submifc clatai has been pi-eferred by the legal representatives of the deceased, deceased cannot be held to be an employee of the owner of the motorcvcle althoiigh he was authorized to dri.ve fhe said vehicle by its owner and, fherefore, he would step into the shoes of fhe owner of the motorcycle. Therefore, fhe deceased, not being a third party, fhe claiin petition itself was not matntainable in the eye of law and the leamed Tribunal has wrongly passed the award awarding Rs. 3,14,000/- as conipensatlon agaanst the appeUant. 6. We have heard the leamed counsel for the parttes and also perused the records of the Tribunal. 7. In ftie instant case, the deceased was not an employee of the owner of fhe vehicle in question. He borrowed (he said vehicle from its real owner. The deceased cannot be held to •« "•a!», :^.'"'^, ;' ..;.,'i-<^L;.\ •>; ^'•^•^"•ry.^ .'j be employee of fhe owner of the motor vehicle although he was autliorjzed t.o drive the said vehicle by its owner, and therefore, he would step into the shoes of the owiner of the motor vehicle. Accordingly, fhe claimants who are the 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 the leamed Tribunal went wrong in awarding compensation to them. 8. Hon'ble the Supreme Court In case of Oriental Insurance Company Ltd. vs. Rajni Devi1 has held fhat Section 163-A of the Motor Vehlcles Act 1988 cannot be sald to have anv application in regard to an accident wherein the owner of the motor vehicle hunself is involved. It was further held fhat the liability under Section 163-A of fhe Act is only on fhe owner of fhe vehicle since a person cannot be both, a claiiaant as also a recipient, the heirs of fhe deceased could not have inaintained a claim in terms of Section 163-A of fhe Act. . ^.. 9. Furfher, fhe Supreme Court in case of Ningamma and anofher vs. United India Insurance Company Ltmited2 has observed in para 18 & 19 as undeg. : "18. In the case of' Oriental Insurance Company Ltd. v. Rajhi Devi & Others (2008) 5 SCC-736, wherein one of us, naniely Hontile '<08 (5) SCC - 736 09 (13) SCC-710 &..X 4 Justice S.B. Sinha is a party, it has been categorically held that in a case where fliird party is involved, the UabUity of the insurance com.paay woiild be unlunited. It was also held in the sald decision that where, however, coiupensation is claimed for the death of the owner or another passenger of the velTicle, the contract of insurance beuig governed by fhe contract qua contract, Uie clalm of the claimant against tlie insurance company would depend upon the terms thereof. It was held Ln tiie said decision that Section 163-A of the MVA cannot be said to haye any application in respect of an accident wherein the owner of the motor vehicle htmself is involved. The decision further held that the question is no longer res tntegra. The liabilily iinder Section 163-A of the MVA is on Ae owner of the vehicle. So a person cannot be both, a clalmant as also a recipient, wifh respect to claim. Therefore, fhe hetrs of the deceased could not have mamtauied a clalm in terms of Section 163-A of the MVA. In oiir considered opinion, the ratio of ttae aforesaid decision is clearly appUcable to the facts of flie- present case. In fhe present case, fhe deceased was not fhe owner of the m.otorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of fhe motorbike alfhough he was aufhorized to drive the said vehicle by its owner, and fherefore, he would step into fhe shoes of the owner of the raotorbike. 19. We have already extracted Section 163-A of fhe MVA hereinbefore. A bare perusal, of the sald provision would make -it explicifly clear that persons Uke the deceased in tlie present case would step into the shoes of the owner of fhe vehicle. In a case wherein fhe victim. died or where he was permanently disabled due to an accident aristng out of fhe aforesaid motor vehlcle' in that event (he liability to make payment of the Gonipensation is on fhe insurance conipany or &e 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 fhat 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 readtng of Section 163-A of fhe MVA. Accordtngly, the legal representatives of fhe deceased who have stepped into fhe shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA. 10. By applying the law laid down by the Supreme Court in the above referred cases in the facts of the present case, in our considered opinion, fhe claim petition filed by the claimants/respondents being not maintalnable should have been dismissed bv the Tribunal. 11. For the reasons mentioned hereinabove, the appeal filed by the insurance company is aUowed and award impugned dated 05.07.2006 is accordingly set aside. No order asto costs. Sd/- N.K.Aganvai G.Minhajjudin Judge