IN THE HON'BLE HIGH COURT OF CHHATISGARH AT BILAPUR Misc. Aoueal {C} No. I '2>Q' 3 /2009 livisio" 89' APPELLANT Bajaj Allianz General Insurance Conipany Limited, Through Branch Manager, Shiv Mohan Bhavan, Vidhan Sabha Marg, Pandri, Raipur (C.G.) {INSURER} VERSUS RESPONDENTS .^^cM:X- :\ il.--f .y-l'^K^ ^^ \...---'^ ^•-"" 1) Smt. Malti Verma W/o Satyanarayan Verma aged about 40 Y^ars, 2) Aarti Verma D/o Satyanarayan Verma Aged about 11 Years, 3} Reena Verma D/o Satyanarayan VermaAged about 10 Years, Respondent No. 2 & 3 are minor represented through natural guardian mother respondent no.l Smt. Malti . Verma W/o Satyanarayan Verma, All resident of Devari Khurd, Tahsil 85 District Bilaspur (C.G.) (CLAIMANTS) 4) Satyanarayan Verma S/o Rarulakhan Venna Aged about 42 Years, R/o Devari Khurd, Tahsil & District Bilaspur (C.G.) (OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 ^ ^^^ if4^e"~'j^ X, -^ ^ <N^ ;\ HIGH C»URTOF CHHATTISGASH AT BIIASPBR MISC. APPBAL (Cl KO. 1333 OF 2009 APPBLLANT RESPONDENTS Bajaj AUiauz Genexal Insuraace Compaay Lmiited Versus Smt Malti Veriaaa aad ottiers. APPEAL U/8 173 OF THE MOTOR VBHICLE ACT. 1988 AS AMBMDED BY ACT OP 1§§4 (DB: Hon'ble Sluci I.M. Ouddnsl & Hoa'bte Shrl G. Miahaiuddla. JJ.t Preseat : Shri Sactiin Siagh Rqput, coiiasel for fhc appeBaat Nonc for &c rcspondcnts. ORALORI R P'assed oa 07th day of Septemlter, 2011) Per I.M. Ouddusi. J. Thls appeal has beeu fited by the appeUant/IasuraBce Compaay ^ainst the impugued award dated 29-06-2009 passed by the First Additional Motor Accident Claims Tribunal, Bflaspur (for short 'the Claims Tribuual') la Clalm Case No.62/2008. 2. Brieffacts ofthe case are tfaat respoudeats No. 1 to 3 are fhe claiiaaute, respondent No. 4 is the owner aud fhe appeUaut is fhe lusurer of the vehlcle. On 13-02-2008, deceased Kaushal Kiunar Venna was driviag the niotofcycte (Bajaj PlatiuEObearingregistratfonNo.C.G. 15-CA/32Q1. NearvjB^e Songara, all of a sudden, one cow cauie acxoss ftie i1oad aud in order to save it, fhe rjder at ouce applied the break ttiereby the said inotorcycle becauie out of control. A^ a result of fttis Accident, Kaushal Kumar Verma sustaiued grievous iajuries and later on be succuuibed to fhe injuries. Report of the iacideut was giveu ia fhe Police Statioa, Piatappur. 3, The clauaants being legal heirs of the deceased, have fUed an application before fhe Tribuxial couceraed, iinder Section 163-A of the Motor Vehicles Act (for short 'the Act^, «®|I '^// clainiing couipeusation to the tuae of Rs. 4,49,500/- for the. deafh offhe deceased. 4. Learned TfibuBal on a close scrutiny of the evideace, material placed on record aad submissjons made by the parties, has aiwaided a suin of Rs.3,24,500/- which ttie claimauts are entitled to receive froiu fhe aoa-appUcaatsjouitty aud sevieraUy aloag with iuterest @ 7% p&r anniim. 5. We have heard the learued couusel for fhe parties aad aiso perused the recoxds ofthe Tribunal. 6. In fhe Instant case, the deceased was not t&e owner of fhe iuotorcycle in questioa. He borrciiwed the laotorcycle ftosa its real owner. Thereforc, nciffaer he was a thind pariy aor fhe einployee of fhe owuer of the jnotoreycle. He was onty aufhorjzed to use/drive fhe motorcyck by Its .ceal owner aad therefore he wouM step into fhe shoes of the owner of fhe motoiicycle. It is weU settled law fhat fhe person who borrowed the vehjcle (motorcycle) ftojm the owjier steps into the shoes of the owuer of fhe vehicte and ttius cannot cteim compensatioa. In the case of Oriental Insurvmce Compa»y Ltmttyed Vs. Rt^ni Devi and wtfwrss reported iu (2008) S SC!C 736, &e Apex Court has held that Section 163-A offhe Motor Vehictes Aet, 1988 cannot be said to have aay applicatfon ia fegard to an accident -whefein. (he owner of Itoe inotor vehicle hlmseB' is iuvolved. 7. In case of Mngimma cmd fawtSier va. VWUeS Jndta Stsuranee Compeiny Ltmtted} reported in (2S009| 13 8CC 710, foBowiug the decision in Ortentul Jnatnaniee f^mpttay IdndSed va. ttt^ni Dert. emd others (supra), th.e Honble..Apcx Court has held as luider: "22. In a case where fhe victim dled or where he ' was permaaently disabled duc to an accident arisiag out of the aforesaid jnotor vehicle in that event the UabiUly to make payment of the conipensation is on fhe insurauce caiupany or the < owner, as the case may be as provided under / Section 163-A. But if it pioved tfaat the drwer is fhe owner ofthe niotor vehicte, ia that caae the owner couU not himself be a reclpieat of couipensati.ou as the liabUity to pay fhe sauie is on him. This proposition is absolutely clear ou a reading ofSecttoa 163-A offhe MVA. Acconlingty, fhe legal representatives of the deceased who have stepped iato fhe shoes of fhe owner of ttie uiotor vehicle could not have claimed coinpensation under Section 163-A ofMVA. 23. When we appty fhe said principJe iato •QK facts of the preseat case we are of the view tfaat the claimaate were aot entitled to c]aua coinpensation uader Section 163-A of the MVA aad to fhat extent fhe High Court was justified iu coiuing to fhe conclusion that fhe saU. prcwision is not applicable to the facts aud cireamstaaces of fhe present case." 8. TTierefore, in our opioton the Trlbuaal has couuaitted jnaanifest error of tefw-ia awaiidmg tlie compensation to the elaimauts In. a claim petition which was not maiatainable at all under Section 163-A offhe Act. 9. In view of fhe above, we set aside fhe impugued awaid dated 29-06-2009 aad dismiss fhc claim petltiou. of the claimants also as not uiauitainable. 10. In the j?esult, the appeal is altowed. No oider as to costs. Sd/- I.M.Quddussi Judge Sd/- G. Minhajuddin Judge K-8T