[<h<f^ff^^Ej Sf^^TWORU^S Bivision BerasK IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (0 N0. \~L^> / 2010 / APPELLANT INSURER/RESPONDENT N0. 4 ^^-, ..V " ,--1FFCO Tokio Geheral Insurance Co. Ltd ' AFL House, 2nd Floor, Lokbhari:i Complex, Marol Maroshi Road, Andheri (East), Mumbai, Through it's Legal Manager, Lal Ganga Shopping Complex, G. E. Road, Raipur, Chhattisgarh VERSUS RE^PONDENTS CLAIMANTS ]rivQ,i Amrito Das, 1. Smt. Savitri Sen, wife of Late Shri -'" Gajanand Sen, aged about 34 years, resident of Bandhuapara, Purani Basti, Thana Purani Basti, Tehsil and District Raipur, Chhattisgarh ^-' Smt. Janki Bai, wife of Shri Bodhan Sen, aged about 52 years 3, Shri Bodhan Sen, son of Late Shri ^ Gannu Lal Sen, aged about 54 years 4.^ Shri Basant Kumar Sen, son of Shri Bodhan Sen, aged about 21 years Respondent No. 2 to 4 are residents of Gobra Nawapara, Behind Kisan Rice Mill, Nayapara, Thana Gobra Nayapara, District Raipur 5^ Shri Toman Lal, son of Shri Tulsi Ram Khute, age not known to the appellant, resident of village Chaitra, Thana Rajim, District Raipur, Chhattisgarh [ Driver ofTractor No. CG04-1726 ] 6.^Sf\n Lakhan Lal Bande, son of Shri /' Dullu Ram Bande, age not known to the appellant, resident of village Arand (Rajim), Post Office Rajim, Thana Rajim, District Raipur, Chhattisgarh [ Owner of Tractor No. CG04-1726 ] 4. Shri S.anjay, son of Shri Bishat Ram Kurre, age not known to the appellant, resident of Nayapara, Tiranga Chowk, Nayapara, Thana Gobra Nayapara, District Raipur, Chhattisgarh [ Owner of motor cycle No. CG04- CM-6108] MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE IVIOTOR VEHICLESACT 1988 HIGH COURT OP CHHATTISGARH. BILASPUR DB: HON'BLE I.M. QUDDUSI 8s HON'BLE PRASHANT KUMAR MI8HRA, JJ M. A. (Q. No. 1213 QF 2010 APPEARANCE: Mr. Amrito Das, coitusel for the appellant. Mr. S.C. Verma, counsel for respoxidents 1. ORDBRJORALl (08.03.2011) Per I.M. QUDDUSI. J This appeal has been filed by the instu-ance Coinpany against the impugned award dated 29.07.2010 passed by the Second Additional Motor Accident Clauns Tribunal, Raipur, (C.G) in Claim Case No.32/2009 whereby the Tnbunal has unposed the Uability joiutly aad severally on the non- applicaats iacluding the appeUant which is the insurer of the two wlieeler. ^ Brieffacts ofthe case as per the version ofthe claimants are fhat on 11.4.2006 deceased Gajju @ Gajaaand Sen was driviag the laotorcycle bearing Regn.No.C.G.04-CM/6108. Respondent no.7 was its owner. He was coaaing fix»m.village Patewa to Nayapara. On ftie way at about 7.30 p.m., in front of P.S. Gobra-Nayapara one Tractor having Regn. No. C.G. 04/1726 which was being driven by respondent no.5 Toniaa Lal in a rash and negligent inauaer dashed fhe inotorcycle of the deceased who sustained injuries on his head aad anns aud succumbed to tfaose iujuries. At the tinie of accident, the deceased was aged about 35 years. He was working in a Photo studio aad was eaming Rs.40,000/- per aanuin. /; ''<s. APPELLANT IFFGO Tokio General Insurance Co. Ltd. Vs. RBSPONDEWTS Siut. Savitri Sen and others APPBAL UNDER SECTIOW 173 OF THE MOTOR VEHICLES ACT. 1988 8. Respondents 1 to 4 beiug dependents legal representatives of the deceased have inade claim for the death of deceased to the ttuue ofRs.5,85,000/-. The leamed claiins Tribunal held fhat the Tractor which was beiag driven by Non-applicant no. 1 in a rash aud negUgent inaiuier hit fhe inotorcycle of fhe deceased who succumbed to the iujuries sustained ia the accident and the driver ofthe Tractor was haviag vaUd aad efifective driving license. It has awarded a total coiupensation of Rs.3,70,000/- which the claunaats are entitled fixnca the non-appBcants jotafty aad severally. We have heard learaed coiuisel for fhe parties aud have also gone fhrough the records of fhe Tnbunal. Sint. Savitn Sen, widow of fhe deceased (A.W.l) has adniitted in the last paragraph her evidence fhat at tbe tirne of accident, her husband i.e., driver of fhe inotorcycle was not having vaUd and efFective driviag Ucense, therefore, no docuinent fhereofhsis been ffled on record. Adinittedly, the motorbike was borrowed by the deceased driver froin its owner aad therefore, he stepped iato fhe shows offhe owner. Therefore, fhe driver is fhe owner ofthe inotorbike aud in that case the owner cannot not claiui compensation from himselfas fhe liability to pay the same is on Tiim. Hon'ble fhe Supreme Court ia case of Ortental Insurcmee Company Ltd., Vs. RajidAeoi; reported in (2008j S SCC 736 has held fhat section 163-A of fhe Motor Vehicles Act 1988 cannot be said to have aay application in regard to au accident whereia fhe owner of fhe uiotor vehicle hitaself is involved. It was furttier held fhat fhe Uability u/s 163-A of the Act is onty on fhe owner of the vehicle since a person cauuot be both, a claunaat as also a recipient, the heu^ of tfae deceased could not have inauitauied a claiia in tenns of Section 163-A ofthe Act. Further m case of Miuiemuna. cmid unother Vs. United Jndlajnsuirance Companw Limtted reported in 2009 113) SfC 710 the Supreme Court while referriag to the case of r <\ Oriental Insurance Company Ltd., Vs. Rajrudevi (Supra), held vide Paras 21 & 22 as fi)Uows: "21. In our considered opiaion, the ratio of fhe decision iu Oriental Insurao.ee Co. Ltd. Case is clearly applicable to fhe lacts of the present case. In fhe present case, the deceased was not the owner of the inotorbike iu question. He borrowed the said inotorbike froni its real owner. The deceased caanot be held to be au einployee of the owner of the iiiotorbike although he was authorized to drive the said vehicle by its owner aud, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would inake it expUcifly clear fhat persons Uke fhe deceased in the present case would step iato the shoes of the owner of the velucle. 22. In a case whereia the victim died or where he was permaaently disabled due to aa accident arising out of the aforesaid m.otor vehicle in fhat event the liabilily to inake payment of fhe compensation is on fhe iasuraace Compaay or fhe owner, as the case laay be, as provided under section 163-A of the Act. But if it is proved that the driver is the owner of the m.0tor vehicle, iu that case tfae owner could not himself be a recipient of coinpensation as fhe liabflity to pay the sarue is on him. AccorcUngly, the legal representatives of the deceased who have stepped into fhe shoes of fhe owner of fhe niotor vehicle could not have clauned coinpensation under Section 163-A ofthe MVA." 9. So far as it relates to the Uability of fhe appellant, ia view of stateinent ofSavitri Sea (A.W, 1) that at fhe tiine ofaccident, her husband was not posses^iag valid and effective driviag \. license, the appeUaat who is fhe iasurer of fhe Motorcycle cannot be held Uable to pay compensation, fherefore, the appeal deserves to be aUowed aud is hereby atlowed. 10. In view of the above facts and circuinstances, fhe appellant- Insurance Coiupaay is exonerated froiu payment of coinpensation iavolved ia the award aad thc Tiibiinal's award to fhe effect fhat the respondents/non-applicaats are joinfly aad severally responsible to pay the amouat of coinpensation is modi&ed to the extent ffaat "fhe appeUant shaU not be liable to satisfy the award". However, we m.ay inake it clear that we iiave not considered the liability of payxncnt ia respect of other non-applicants fhat is respondents 5 & 6 herein aad therefore, the claixnants would be free to get the award executied frova. these respondents. The amount which has been deposited by fhe appeUant shaU be refunded to it. -———___—__ Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Rao