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2011 DIGILAW 3 (CHH)

Sakun Kushwaha v. Dhaniram

2011-01-04

I.M.QUDDUSI, PRASHANT KUMAR MISHRA

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JUDGMENT : I.M. Quddusi, J. This appeal has been filed by the Claimants against the award dated 17-1-2007 passed by IX Addl. Motor Accident Claims Tribunal (F.T.C), Bilaspur (C.G.) in Claim Case No. 163/2005 dismissing the claim of the Appellants. 2. Brief facts of the case as per the version of the claimants are that the Appellants are mother, sister and brother of the deceased Sunil Kushwaha. On 5-7-2005 the deceased was going to Marwahi by driving the Motorcycle bearing Regn. No. C.G. 14-C/3452 owned by Respondent No. 1 Dhaniram and insured with Respondent No. 2. Ram Singh Thakur was sitting as a Pillion rider. On the way at about 11.00 a.m., the said motorcycle met with an accident near village Pandari, as a result of which the deceased succumbed to the injuries sustained by him in the said accident. 3. The claimants being legal representatives of the deceased filed an application before the Tribunal u/s 163A of the Motor Vehicles Act, claiming compensation to the tune of Rs. 13,45,000/- for the death of deceased in the said accident. 4. The Claims Tribunal after considering the material on record and the arguments advanced by learned Counsel for the respective parties; dismissed the claim petition. 5. The deceased borrowed the motor cycle from the owner with his consent and stepped into the shoes of the owner. 6. Hon'ble the Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, (2008) 5 SCC 736 , has held that Section 163A of the Motor Vehicles Act 1988 cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. It was further held that the liability u/s 163A of the Act is only on the owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the Act. 7. Further in case of Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , the Supreme Court while referring to the case of Oriental Insurance Company Ltd. v. Rajni devi (supra), held vide Paras 21 and 22 as follows: 21. 7. Further in case of Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , the Supreme Court while referring to the case of Oriental Insurance Company Ltd. v. Rajni devi (supra), held vide Paras 21 and 22 as follows: 21. In our considered opinion, the ratio of the decision in Oriental Insurance Company Ltd. Case is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that person like the deceased in the present case would step into the shoes of the owner of the vehicle. 22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance Company or the owner, as the case may be, as provided u/s 163A of the Act. But if it is proved that the 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. 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 u/s 163A of the MVA. 8. Admittedly, in the present case the deceased was driving a motorcycle which was borrowed from its real owner namely Dhaniram/Respondent No. 1 and met with an accident without involving any Ors. vehicle. Since the deceased had stepped into shoes of owner of the vehicle, Section 163A of the Act cannot apply wherein owner of the vehicle is involved. Hence the legal representatives of the deceased could not have claimed compensation u/s 163A. In view of the above discussion, we are not inclined to interfere with the impugned award dated 17-1-2007 passed by the Tribunal. 9. Hence the legal representatives of the deceased could not have claimed compensation u/s 163A. In view of the above discussion, we are not inclined to interfere with the impugned award dated 17-1-2007 passed by the Tribunal. 9. In the result, the appeal is dismissed. No order as to cost.