IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH Appellants 1^..--. ^yy ^-:"r^ ,.^y ..-" ^: AT BILASPUR c' f- 15 r 1) 2) 3) 4) 5) \\1 V-1 M.A.(C.) No...lL.-?.../.../2008 1«. .v^\ Respondents Smt.Malti Bai Sahu W/o Late Manharan Sahu Aged about 35 years Kumari Lokheshari Sahu D/o Late Manharan Sahu, Aged about 12 years Koushal Kumar Sahu S/o Late Manharan Sahu, Aged about 10 years, Bharat Kumar Sahu S/o Late Manharan Sahu, Aged about 8 years, - (Appellant No.2 to 4 are minor through legal Guardian Mother Smt. Malti Bai Sahu W/o Late Manharan Sahu, Smt. Birjha Bai W/o Late Bewa Ram Sahu, Aged about 60 years, AU are resident of Village Korra, Tahsil Kurud, District Dhamtari (C.G.) Versus 1) The Branch Manager Through :United India Insurance Company Limited, Krishna Complex, Katchari Chowk, JailRoad, Raipiir, Tahsil 8s District Raipur (C.G.) - / ^- 2) Janak Ram Dhruvavanshi S/o Abhay Ram Dhruvavanshi, resident of viUage Bhendanrani, Tahsil Kurud, District Dhamtari (C.G.) MEMO OF MISCELLANEOUS APPEAL UNDER SECTION 173 QF MOTOR VEHIGLE ACT 1988 FOR ENHANCEMENT OF COMPENSATION AWARD ei» I HIGH COURT OF CHHATTISGARH. BILASPUR DB: Hon'ble I. M. QUDDUSI & Hon'ble MANINDRA. MOHAN SHRIVASTAVA, JJ APPELLANT: KBSPONDENTS: M.ACCl.No. 1134/200^8 Sint. Malti Bai and othei^. Vs. The Braach Maaager, United India Insuraace Coinpany Limited & ofhers <7^G MISC. APPEAL UNDER SBCTION 1730F THE MQTOR VEHICLESACT. 1988 Appearaace: Mr. Vivek Rafhore, Couitsel for the appeUaat. Mr. Dashrafh Gupta, couasel for respondent no. 1. Mr. Malay Kumar Shrivastava, counsel for respondent no.2 ORAL ORDBR (04.05.2011) Per I.M. OUDDUSL J, 1. This appeal has been filed by fhe Claimaats against the impugned award dated 08.04.2008 passed by fhe Motor Accident Claims Tribunal, Dhamtari (C.G) in Claun Case No.08/2007 disuiissiug the claim petition ofthe appeUants. 3. Brief facts of the case as per fhe version of the claimants are fhat on 05.11.2006 deceased Manliaraa Sahu was driviag fhe Bajaj Kawasaki Motorcycle bearing Regn.No. C.G.05/ZE/ 2573 owned by respoudent no.2 Janak Ram. Vishnu Rant Sahu was the piUion rider. They were coining by the said inotorcycle to viUage Korra frqiii village Silauti. On the way, near a pond, he dashed a buUock cart due to sudden failure of brakes aad fhe light of fhe inotorcycle, as a result of whicb, Maaharau Sahu and Vishnu Rain Sahu sustained grievous injuries aad they were brought to Masihi Hospital, Dhamtari where deceased Manharan died during fhe course x of treatment. At tiie^tuae of accident, fhe deceased was aged about 35 years aad was eaming Rs.3000/- per inonth. The r ^^f^ %.\ 'i'.iy ...^' claiinants being dependents/legal representatives of fhe deceased have fUed claun petition u/s 163-A of fhe Motor Vehicles Act, 1988 for fhe award of a total coinpensation of Rs.9,78,000/- undervarious heads. 3. The leamed Claims Tribuiial disinissed the claiin. petition holdiag fhat fhe accident took place due to rash aad negligent driviag of fhe inotorcycle in. question by the deceased hnaself aad there was breach of conditions of fhe iusurance poUcy. 4. In fhe written stateiaent filed by non-appUcaut no.2, it has been stated fhat he was fhe owner of the inotorcycle and fhe deceased was eaiployed by him as agricultural labourer. Therefore, the deceased has stepped into the shoes of the owner. 5. It is weU settled law that fhe person who borrowed fhe vehicle (inotorcycle) froin the owner steps into fhe shoes of fhe owner of the vehicle and fhus cannot claim coinpensation froin hiinself/owner. In fhe case of Oriental . lasurance Compaay Liiuited Vs. Rajai Devi and others (2008) S SCC 736 the Apex Court has held that Section 163-A of the Motor Vehicles Act, 1988 canxiot be said to ha.ve aay appUcation ia regard to au accident whereia fhe owner of the xnotor vehicle hitaself is involved. In the iastaat case, the deceased was not fhe owner of fhe niotorcycle in question. He borrowed fhe inotorcycle froin its real owner. Therefore, he does not com.e under fhe category ofthe fhird party. He was only aufhorized to use/drive the iiiotorcycle by its owner and fherefore he would step io.to the shoes of the owner of the uiotorcycle. S. In the case on hand the claiinaats had filed fhe clami petition under Section 163-A of the Motor Vehicles Act, 1988, which reads as under : "163 A. Special provisions as to payinent of compensatioa oa structured formula basls. - (1) Notwifhstaudiag anythlag contamed ia fhis Act - or ia any otfaer law for fhe time beiag ia force or ^? iastrument haviug fhe force oflaw, the owaer offhe niotor vehicle or the aufhorized insurer shall be liable to pay in the case of deafh or permanent disablement due to accident arisiag out of tihie use of inotor vehicle, conipensation, as iadicated ia fhe Second Schedule, to the legal heirs or fhe victun, as fhe case uiay be. Explaaation.—For the purposes of this sub- section, "permaaent disabitity" shaU have the saine xneaaiag aad extent as ia fhe Workmen's Compensation Act, 1923 (8 of 1923). (2) In aay claLm for conipensation uiider sub- section (1), fhe claitnant shaU not be required to plead or estabUsh fhat tibie deafh or pennaaent disableinent iu respect ofwhich fhe claiui has been niade was due to any wrongful act or neglect or default of fhe owner of tfae vehicle or vehicles concemed or of any other person. (3) The Central Govenunent inay, keepiug ia view fhe cost of living by notification ia fhe OfBcial Gazette, froin tune to tiiue amend fhe Second Schediile. A bare perusal of the provisions of Section 163 A of fhe Act, 1988 would inake it expUcifly clear fhat fhe person, Hke fhe deceased in fhe present case, would step into the shoes of fhe owner of fhe vehicle. In fhe case of Ni^unma aad another Vs. United India Insurance Company Lintlted (2009) 13 SCC 710, foUowmg fhe decision ia Oriental Insuraace Company Limited Vs. Rajni Devi and others (supra), fhe Hoa'ble Apex Court has held as uiider : "22. In a case wherein the victun died or where he was peniiaaenfly disabled due to an accident arisiug out of fhe aforesaid niotor vehicle ia that event the liability to luake payment offhe coinpensation is on fhe insurance conipaay or the owner, as the case niay be as provided under Section 163-A. But if it is proved that fhe driver is the owncr of fhe inotor k "'^ vehicle, ia fhat case the owner could not himself be a recipient of coinpensation as fhe liability to pay the same is on him. This proposition is absolutely clear on a readiag of Section 163-A of the MVA. Accordiagly, the legal representatives of ttie deceased who have stepped iato fhe shoes of fhe owner of fhe inotor vehicle could not have claimed conipensation under Section 163-A of fhe MVA. 23f. When we apply fhe said principle into the facts of fhe present case we are of fhe view that fhe clamiauts were not entifled to claua coinpensation under Sectiou 163-A of fhe MVA aad to that extent the High Court was justified ia commg to the conclusion fhat fhe said provision K not appUcable to fhe facts aad circuiustances ofthe present case. In the iustant case, fhe legal representatives of the deceased, who has stepped into fhe shoes of the owner of the uiotor vehicle, Iiave clauned coinpensation uiider Section 163-A of fhe MVA. Therefore, in view of fhe law laid down by tbe Suprenie Court iu case of Sfingamma (suprd), claua application is not niaintainable u/ s 163-A of fhe MVA aad ftie appeal is Uable to be and is hereby disnussed. --- -————- J Sd/- I-M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Rao r