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2009 DIGILAW 1285 (MP)

KIRAN CHHABRA v. HITESH CHHABRA

2009-11-19

N.K.MODY

body2009
Judgment N.K.Mody, J. ( 1. ) -Being aggrieved by the award dated 18/11/2005 passed by X MACT, Indore in claim case No.28/2003 whereby in a death case claim petition filed by the appellants was dismissed, the present appeal has been filed. ( 2. ) Short facts of the case are that appellants filed a claim petition before the learned tribunal on 02/09/2003 alleging that deceased/Surendra Chhabra was the husband of appellant No. 1, father of appellant No.2 and son of appellants No.3 and 4. It was further alleged that on 11/11/2002 at about 21.45 PM Surendra Chhabra was going on his scooter bearing registration No. MP-09/JL/2072 which was owned by respondent No. 1 and insured with respondent No.2. It was also alleged that because of slip Surendra Chhabra fell down and sustained head injury. It was alleged that Surendra Chhabra was brought to the hospital where he passed away on 21/11/2002. It was prayed that since the offending vehicle was insured with respondent No.2, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by the respondent No.2 on various grounds including on the ground that respondent No. 1 is none else but the son of deceased. It was alleged that since the accident occurred on the part of negligence of deceased himself and also the fact that deceased was not having the valid and effective driving license at the relevant time, therefore, insurance company is not liable for payment of compensation. It was alleged that since income of the deceased has been assessed more than Rs.40,000/- per year, therefore, appellants are not entitled for any amount of compensation. It was alleged that since the deceased was borrower of the offending vehicle, therefore, the appellants were stepping in the shoes of respondent No.1 and not entitled for any compensation under Section 163-A of the Motor Vehicles Act. After framing of issues and recording of evidence, learned tribunal dismissed the claim petition filed by the appellants, against which the present appeal has been filed. ( 3. ) Learned counsel for the appellants argued at length and submit that since the income of the deceased was more than Rs.40,000/- per year, therefore, only claim petition filed by the appellants filed under Section 163-A of the Motor Vehicles Act could not have been dismissed. It is submitted that this cannot be a ground for dismissal of claim petition. ) Learned counsel for the appellants argued at length and submit that since the income of the deceased was more than Rs.40,000/- per year, therefore, only claim petition filed by the appellants filed under Section 163-A of the Motor Vehicles Act could not have been dismissed. It is submitted that this cannot be a ground for dismissal of claim petition. Learned counsel placed reliance on a decision in the matter of National Insurance Co. Ltd. Vs. Amar Nath 2005 (1) D.M. P. 14 (H.P.) wherein Scooter skidded and scooterist died due to head injury High Court of Himachal Pradesh held that requirements to be established are only factum of accident, age and income of deceased. It was held that insurance company is liable to pay compensation. Learned counsel further placed reliance on a decision in the matter of Sarla Verma Vs. Delhi Transport Corporation 2009 AC J 1298 wherein Honble Apex Court observed that compensation will be higher where deceased was ideal and not having any income. Reliance is also placed on a decision of this Court in the matter of Smt. Savitridevi Vs. Ajay Navaria in MA No.379/2003 decided on 17/09/2003 in a claim petition filed under Section 163-A of M.V. Act, this Court has awarded compensation of Rs.1,80,000/-. Lastly reliance was also placed on a decision of Division Bench of this Court in the matter of Sitabai Vs. KB. Saxena 1 (2007) ACC446 (DB) this Court held that in a accident case even if accident occurred due to negligent driving of deceased, then too, it is immaterial for disposal of claim petition filed under Section 163-A of Act. It was further held that since accident occurred by a vehicle which was owned by respondent No. 1 and insured with respondent No.2, therefore, they are liable to pay compensation. It is submitted that the appeal filed by the appellants be allowed and the impugned award passed by learned tribunal whereby the claim petition filed by the appellants was dismissed, be set-aside and the adequate compensation be awarded. ( 4. ) Learned counsel for the respondent No.2 submits that no illegality has been committed by learned tribunal in dismissing the claim petition filed by the appellants. It is submitted that the deceased himself was at fault and respondent No. I is the son of the deceased. ( 4. ) Learned counsel for the respondent No.2 submits that no illegality has been committed by learned tribunal in dismissing the claim petition filed by the appellants. It is submitted that the deceased himself was at fault and respondent No. I is the son of the deceased. It is submitted that as per Section 163-A of the Act liability to pay the compensation arises whether the insured or deceased was having the income as indicated in the II Schedule. It is submitted that II Schedule covers the victim from the income group of Rs.3,000/- per annum to Rs.40,000/- per annum. It is submitted that as per the claim petition income of the deceased was more than Rs.10,000/- per annum, therefore, appellants are not entitled for any compensation as per II Schedule of the Act in a claim petition filed under Section 163-A of the Act. Learned counsel placed reliance on a decision in the matter of Ningamma Vs. United India Insurance Co. Ltd. 2009 ACJ 2020 wherein in a case where a person borrowed a motor-bike from owner and met with an accident resulting in his death Honble Apex Court has held that deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner. It was further observed by Honble Apex Court that although the deceased was authorized to drive the said vehicle by its owner, therefore, he would step into the shoes of the owner- of the motorbike. It was further held that legal representatives of a person driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle would not be entitled to claim compensation under Section 163-A of the Act. It is submitted that the appeal filed by the appellants be dismissed. ( 5. ) Undisputedly the respondent No. 1 was the son of the deceased and owner of the offending vehicle. It is also not in dispute that the accident occurred when the deceased was going on the offending vehicle as the scooter was skidded. It is submitted that the appeal filed by the appellants be dismissed. ( 5. ) Undisputedly the respondent No. 1 was the son of the deceased and owner of the offending vehicle. It is also not in dispute that the accident occurred when the deceased was going on the offending vehicle as the scooter was skidded. Whether in such circumstances the legal representatives of deceased or a injured person is entitled for compensation under Section 163-A of the Motor Vehicles Act was taken into consideration by the Honble Supreme Court in the matter of Ningamma (Supra) wherein it has observed that a bare perusal of said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where be was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of compensation is on the insurance company or the owner, as the case may be as provided under section 163-A. Bat if it is proved that driver is the owner of the motor vehicle, in that 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 reading of section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under section 163-A of the MVA. ( 6. ) In view of the aforesaid position of law and after taking into consideration all the facts and circumstances of the case and keeping in view the fact that deceased was the father of respondent No. 1, who was the owner of the offending vehicle, this Court is of the view that the deceased stepped into the shoes of the respondent No. 1, therefore, no illegality has been committed by earned tribunal in dismissing the claim petition filed by the appellant. In view of this, the appeal filed by the appellant is hereby dismissed. No order as to costs. Appeal dismissed.