IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT ,,CLAIMANT .-•- '" tf^^li RESPONDENT NON-APPLICANT Misc. Appeal fCI NQ. ^H /2011 KUMAR GUPTA S/0: S.K.GUFTA; AGE: 21, R/0: STREET N0. 15-A, PRAGATI NAGAR, RI8SALI, BHILAI, TAH. 85 DISTRICT: DURG (C.G.), P.S. NEVAI. VERSUS MANAGER, , IFKO-TOKYO GENERAL INSURANCE CO. Ltd. IIIrd FLOOR, 345-347 SHOPPING MALL, G.E. RAOD, RAIPUR (C.G.) ^" APPEAL U/S 173 MOTOR VEHICLE ACT 1988 POR-, C-©pTHEAWARDVALUED AT Rs. 10.32'.80Q/- Jf^ r ^^^2E^ '^'% ^fe B r^i s ^^^^ 's^^^ ^- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Claimant Respondent Non-Applicant M.A.fctNo. 684/2011 Manoj Kumar Gupta Vs Manager, IFKO-TOKYO General Insurance Co. Ltd., Raipur. Present: Mr. Amiyakant Tiwari, counsel for the appeflant. ORDER (Orall (4th July, 2011) Per I.M. Quddusi. J; 1. This appeal has been filed by the agpellant/claimant against the award of the Motor Accident Claims Tribunal (FTC), Durg (in short "the Tribunal") dated 15.3.2011 passed in Claim Case No.45/10, dismissing the claim petition ofthe ctaimant/injured, who was driving the motorcycle - two-wheeier, as the ctaim petition was filed under Section 163A ofthe Motor Vehicles Act. 2. Brief facts of the case are that on 26.5.2008 motorcycle Hero Honda (Karizma) Engine No.01676 & Chassis No.01838 was jnsured with the respondent and owned by deceased Ashish Shende. On the date of accident i.e. 26.5.2008 at about 7.40 am, the appellant was coming back from Nagpur on the'aforesaid motorcycle with Ashish Shende. When the appellant reached near Udasi Baba Math, he met with an accident, as a result of which he fell down and sustajned injuries on his both legs, whereas Ashjsh Shinde, the pillion rider, died on the spot. The appellant underwent treatment for the leg jnjuries. However, after treatment, his right leg has been shortened by 3 7z inch, due to which he is unable to move without support. At the time of accident, he was 21 years and was studying at BIT Coilege, Durg as BE Student. He was ateo doing the job of supervision in addition to studies and thereby, earning Rs.3300/- Itss ^ per month. Due to disabiijty suffered by him in the accident, his future prospects have been affected adversefy. He was on bed for nine months and had to keep an attendant for Rs.2000/- per month. Thus, a claim petition was fiied for a total compensation of Rs.10,32,800/- against the injuries sustained by the ciaimant. 3. Learned counsel for the appellant has submitted that since the owner of two-wheeler was a pillion rider in the instant case, therefore, the law laid down in Ningamma and another vs. Untted tndia Inswance Company Llmited; reported in 2009 (13) SCC 710, would not be applicabie. 4. We are not in agreement with the submission of learned counsel as the question for our consideration jn thjs appeal is the applicabiJity. of the provisions of Section 163A ofthe Motor Vehictes Act (in short "the Act"), which reads as under: "163A. Special provisions as to payment of comipensation on structured fprmuia basis. - (1) Notwithstandjng anything contamed in this Act or in any other Jaw for the time being in force or instrument having the force of law, the owner of the motor vehide 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 eident 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 defautt of the owner of the vehicle or vehictes concemed or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the OfRcial Gazette, from time to time amend the Second Schedule." 5. Since two-wheeler was to be driven by the owner and the owner authorized the claimant to drive two-wheeler on his behalf, therefore, he was representative of the owner and as such, he cannot be theclaimant and recipient both as he stepped into the ^ l^ shoes of the owner. In these circumstances, the claim petition under Section 163A of the Act was not maintainable. 6. The law laid down by the Hon'ble Apex Court in the cases of Oriental Insurance Company Ltd., vs. Rajnidevl; reported in (2008) 5 SCC 736 and Deepal Glrishbhai Soni and othws vs. Unitecf India Insurance Co. Ltd., Baroda; reported in (2004) S SCC 385, are fully applicable in the instant case. However, since the claim petition under Section 163A of the Act was not maintainable, therefore, it is always open for the claimant to file claim petition under any other provisions of the Act, even in the case of hit-and-run. 7. In this view of the matter, holding ttiat the claim petition under Section 163A of the Act was not maintainable, we dismiss this appeal with (iberty to the appedant to file fresh daim petition under any other provisions of the Act available to him in the facts and circumstances of the case. 8. No order as to costs. 9. Certified copy as per rules. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge ^