1 / 9 2025:CGHC:32812 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 857 of 2019 1. Chandrika Prasad S/o Late Jhumuklal Sao Aged About 52 Years 2. Smt. Meena Sahu W/o Chandrika Prasad Sahu Aged About 47 Years 3. Ku. Usha Sahu D/o Chandrika Prasad Sahu Aged About 29 Years 4. Ku. Nidhu Sahu D/o Chandrika Prasad Sahu Aged About 22 Years All are Residence-Near Holy Cross School Mangala, Thana, Civil Line Tahsil And District- Bilaspur, Chhattisgarh.. --- Appellants/ Applicants/ Claimants versus • Branch Manager The Oriental Insurance Company Limited Branch Office, Rama Tred Center Old Bus Stand In Forn Of Rajeev Plaza Thana-Civil Line Tahsil And District- Bilaspur, Chhattisgarh..........(Insurer The Offending Vehicle Scorpio No. C.G.10/FA./1844). ---Respondent/ Non-applicant ____________________________________________________________ For Appellants : Ms. Shalini Jangde, Advocate on behalf of Mr. A.L. Singroul, Advocate For Respondent : Mr. Prasanjit Dutta, Advocate on behalf of Mr. Sudhir Agrawal, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 14/07/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 23.02.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Bilaspur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 9 No. 413/2018, whereby learned Claims Tribunal dismissed the application filed under Section 163-A of the Act, 1988. 2. Facts of the case relevant for disposal of this appeal are that on 01.04.2018 Uttamd Sahu was travelling from Mangla to Bhatapara driving a scorpio vehicle bearing number CG12-FA-1844 (hereinafter referred to as “offending vehicle”). At about 08:10 pm in the night when he reached village Khamariya Basti, Bhatapara-Balodabazar main road, his vehicle overturned while saving some cattles came on the road suddenly. In the accident, Uttam Sahu crushed under the vehicle, suffered sever injuries over his person and succumbed to the injuries on spot. Accident was reported to police station Bhatapara District Baloda bazar and based on which Crime No. 105/18 was registered for alleged offences under Sections 279, 337 of IPC. 3. Appellants, parents and sisters of deceased, filed an application under Section 163-A of the Act of 1988 seeking compensation of ₹ 35,00,000/- pleading therein that on the date of accident deceased was unmarried aged about 27 years of age. He was doing the work of driver and was earning ₹ 3,300/- per month. 4. Respondent/ Non-applicant -insurance company of the offending vehicle filed reply to the application and denied the pleadings made therein. It was further pleaded that on the date of accident, deceased was driving the offending vehicle rashly and negligently carrying more passengers than the seating capacity due to which he lost control over the vehicle and it overturned. It was pleaded that the risk of the driver was not covered under the policy. 5. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased-Uttam Sahu died because of fatal injuries suffered in the accident arising out of overturning of offending vehicle driven by deceased because of losing control over the 3 / 9 vehicle in an attempt of saving some cattles came on road suddenly. It is held that the accident occurred due to own negligence of deceased, exonerated the insurance company from its liability and dismissed the claim application of applicants-claimants. 6. Learned counsel for appellants-claimants would submit that the Claims Tribunal erred in recording a finding that the deceased himself was guilty of rash and negligent driving and therefore application seeking compensation is not maintainable. She contended that when the application is filed under Section 163-A of the Act of 1988, negligence is not be looked into and the compensation is to be awarded under the fixed structural formula basis. In support of her contention, she places reliance upon the decision of Hon’ble Supreme Court in the case of Shivaji and another vs. Divisional Manager, United India Insurance Co. Ltd. reported in (2019) 12 SCC 395. 7. Learned counsel for Respondent No. 3/ Insurance Company opposes the submission of learned counsel for appellants-claimants and would submit that the deceased was neither the owner of the offending vehicle nor the driver employed by the owner to ply the said vehicle and therefore he being the driver of the offending vehicle at the time of accident is not entitled for any compensation, more so when, the accident is a result of rash and negligent driving of offending vehicle and deceased died himself. In support of his contention he places reliance upon the decision in the case of Smt. Sunita Gupta and another vs. Gurusharan @ Dauwa Gupta and others passed in MAC No. 706 of 2014 on 24.09.2020 by Division Bench of this Court. 8. I have heard learned counsel for the respective parties and also perused the record. 9. Perusal of record would show that the claimants have filed an application under Section 163-A of the Act of 1988 pleading therein that when the 4 / 9 deceased Uttam Sahu while driving the scorpio No. CG12-FA-1844 (offending vehicle) and going to Bhatapara from village Mangla, some cattles suddenly came on road and while saving the cattle driver of scorpio lost control on the vehicle and it overturned. 10. To prove the pleadings made in the claim application, claimants have examined Chandrika Prasad as AW-1, father of deceased. Non-applicant No. 2-Insurance Company submitted reply to the claim application pleading therein that at the time of accident deceased himself was driving the vehicle rashly and negligently, it dashed with the milestone and turned turtle. 11. From the pleadings made in the claim application, witness examined on behalf of claimants to prove the pleadings made therein, it is apparent that the accident occurred when the deceased himself was driving the offending vehicle. As per the decision of Hon’ble Supreme Court in the case of Ningamma vs. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710 has held that borrower of the vehicle stepped into the shoes of owner and therefore borrower of the vehicle or his legal representatives are not entitled for compensation. He cannot claim compensation under the provision of Section 163-A of the Act of 1988. Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Ashalata Bhowmik reported in (2018) 9 SCC 801 has considered its earlier decision in the case of Oriental Insurance Co. Ltd. vs. Jhuma Saha reported in (2007) 9 SCC 263 and observed thus : “8. This Court in Oriental Insurance Co. Ltd. v. Jhuma Saha [Oriental Insurance Co. Ltd. v. Jhuma Saha, (2007) 9 SCC 263 : (2007) 3 SCC (Cri) 443] , was considering a similar case where the owner himself was driving the vehicle which due to his negligence dashed with a tree on the roadside as a result of which he died. The Court held that the claim petition filed by his legal representatives was not maintainable. It was held thus : (SCC p. 265, paras 10- 11). 5 / 9 “10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable. 11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.” 12. In the aforementioned case of Ashalata Bhowmik (supra) the deceased himself was the owner-cum-driver of the offending vehicle therein and in that facts of the case Hon’ble Supreme Court has held that since indemnification of personal accident of deceased owner is limited to Rs. 2,00,000 under contract of insurance, respondents therein entitled for said amount towards compensation. 13. From the facts of the afore-referred cases, it is apparent that the deceased in that case was the registered owner of the offending vehicle. Division Bench of this Court in the case of Smt. Sunita Gupta (supra), while considering dismissal of the application under Section 163-A of the Act of 1988 has observed thus : (para 13, 17 to 19 and 21). “13. From the aforementioned evidence and facts available on record, it is apparent that on the date of accident, deceased himself was driving the private vehicle. He was not a paid driver but a borrower and, therefore, he stepped into the shoes of owner of the offending vehicle. Hon’ble Supreme Court in the case of Ningamma v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710 has held that the borrower of the vehicle stepped into the shoes of owner, therefore, borrower of the vehicle or his legal representatives are not entitled for compensation from the insured. In the case at 6 / 9 hand, deceased was driving the vehicle as borrower of the vehicle, hence, he stepped into the shoes of the owner and not entitled for any amount of compensation as third party. Recently, Hon’ble Supreme Court in the case of Ramkhiladi (supra) has again considered the entitlement of the claimants under Section 163-A of the Act of 1988 by legal representatives of the owner of the motor vehicle and held thus: “5.9 … It is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. …” 17. Perusal of coverage of risk as mentioned above, the schedule of premium in the policy is Subject to IMT endorsement printed herein/attached to IMT -22, IMT-28, IMT-16 and IMT -5. IMT-22 is compulsory deductible. Personal accident to unknown passenger other than the insured, paid driver and cleaner GR36A is compulsory personal accident covered to owner/ driver. GR 36A reads as under. “GR 36A. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an “effective” driving licence is termed as Owner- Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co- driver. NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/ she holds an effective driving licence. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an 7 / 9 effective driving licence. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner-driver should not be charged and the compulsory P.A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. The scope of the cover, Capital Sum Insured (CSI) and the annual premium payable under this section are as under:- TYPE OF VEHICLES CAPITAL SUM INSURED (Rs.) PREMIUM (Rs.) COVER Motorised Two Wheelers x x x x x x x x x x x x x x Private Cars 2 lakhs 100/- i) 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye. ii)50% of CSI for Loss of one Limb or sight of one eye. iii)100% for Permanent Total Disablement from injuries other than named above. Commercial vehicles x x x x x x x x x x x x x x x 18. Perusal of contents of GR 36A would show that the risk under the policy is for personal accident coverage for the owner of the insured vehicle holding effective driving licence. “Owner” is defined under Section 2(30) of the Act of 1988 which reads as under. “Section 2. Definitions.- (30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement; 8 / 9 19. From perusal of definition of owner as provided under Section 2(30) of the said act is the person in whose name the motor vehicle stand registered. From reading of GR36 A and also the definition of ‘owner’ as above, makes it explicitly clear that the owner means a person on whose name the motor vehicle was registered. 21. In view of the above discussion and as per the terms of insurance policy, deceased though driving the offending vehicle was not the owner of the vehicle for the purpose of claiming compensation under the insurance policy. The policy mentions the payment of premium for owner-driver and covering the risk of personal accident only for the registered owner in person.” 14. In the case at hand also, the Insurance Company has produced copy of insurance policy as Ext. D-1, Additional Premium paid for Personal Accident coverage for owner and driver is under the GR-36A which is extracted in the preceding paragraph from the judgment of Smt. Sunita Gupta (supra) which talks of only the registered owner in person, is entitled for compulsory coverage where he or she holds an effective driving licence. 15. The decision relied upon by the counsel for appellant in the case of Shivaji and another (supra) is distinguishable on the facts. In that case, the car driven by the claimant met with an accident with the truck. Claim application was filed under Section 163-A and in that facts of the case, Hon’ble Supreme Court observed that- to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163-A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is “final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. 16. In the case at hand, claimants have not proved the pleadings mentioning about the manner in which the accident occurred, however, it is apparent that the deceased met with an accident while driving the vehicle himself. 9 / 9 17. For the foregoing discussion and considering the decision in the case of Smt. Sunita Gupta (supra), I am of the view that the Claims Tribunal justified in dismissing the claim of appellants-claimants, however, had considered the decision of Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Rajni Devi and others reported in (2008) 5 SCC 736 which is on different facts. In Rajni Devi’s case, Hon’ble Supreme Court in para-11 has held as under: “11. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janak Raj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to.” 18. In the aforementioned facts of the case where the application is filed by the claimants seeking compensation in a case of motor accident arising out of self-negligence of the driver of the offending vehicle, deceased not being owner or driver, claimants even will not be entitled for the compensation as per terms and conditions of insurance policy in a Personal Accident cover. 19. For the foregoing discussion, appeal being sans merit is liable to be and is hereby dismissed accordingly. Sd/- (Parth Prateem Sahu) Judge pwn