-1- 2025:CGHC:36991 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 885 of 2020 1 - Shawal Masih S/o Prabhudas Masih Aged About 44 Years 2 - Marsi Das W/o Shawal Masih Aged About 43 Years All the appellants are R/o Village Vishrampur, District Raipur Chhattisgarh ... Appellant (s) versus The New India Insurance Co. Ltd. Through Divisional Manager No. 2 The New India Insurance Co. Ltd. Behind L.I.C. Office Pandari Raipur, Police Station Pandari, Raipur District Raipur Chhattisgarh. (Insurer Of Motor Cycle No. C.G. - 04-Ds-1280) ... Respondent(s) ________________________________________________________ For Appellant (s) : Mr. Rakesh Thakur, Advocate For Respondent No. 1 : Mr. B.N. Nande, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 29 /07/2025 1. This is claimant’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned Fourth Additional Motor Accidents Claims Tribunal, Raipur (CG) vide award dated 15.05.2018 passed in Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.08.12 10:57:54 +0530 -2- Claim Case No.37 of 2012. 2. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 163-A of the Act of 1988 before the learned Claims Tribunal pleading therein that on 06.10.2010 Shailesh Masih was returning from Nandghat to his village Vishrampur driving motorcycle No.CG 04 DS 1280 along with Sujit Masih and Anis Masih. Owner of motorcycle namely Sujit Masih and one more Anis Kumar Masih were sitting as pillion on the said motorcycle. When they were on their way, rear wheel tyre of the motorcycle got burst, motorcycle became unbalanced, all three fell on the ground and remained lying on the road with serious injuries. At the same time an unknown vehicle ran over all the three persons lying on the ground and fled away. Due to injuries suffered by them in the accident all three died. At the time of accident deceased -Shailesh Masih was 25 years young person, was earning Rs.40,000/- per annum by working in a factory. Claimants being parents of deceased claimed total compensation of Rs.4,97,000/- from non-applicants under different heads. 3. Non-applicant/insurance company by filing its written statement denied the pleadings made in the claim application and pleaded inter alia that accident occurred due to negligence on the part of driver of motorcycle. More persons were sitting on the motorcycle than the seating capacity which is violation of conditions of insurance policy. Driver of the motorcycle did not have any valid and effective licence to drive the vehicle which was in the knowledge of owner of motorcycle. As it is a hit and run case, as envisaged under Section 161 of Act of 1988, the claim application was not maintainable. Hence, the claim application be -3- dismissed. 4. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, recording a finding that vehicle was being driven by the deceased with permission of the registered vehicle owner, therefore, deceased has stepped into the shoes of the owner. Hence, legal representative of deceased are not entitled to receive compensation under Section 163-A of the Act of 1988, dismissed the claim application. 5. Learned counsel for the appellants submits that deceased Shailesh Masih while travelling on the motorcycle No. CG-04-DS-1280 along with Sujit Masih and Anish Masih met with an accident and succumbed to motor accidental injuries suffered by him. He contended that claimants thereafter have filed an application under Section 163-A of the Act of 1988 in the said case. Claimants are not required to prove negligence of other person or accident arising out of negligence on the part of driver of any other vehicle. Learned Tribunal has erroneously dismissed the claim application even after recording the fact that deceased who was driving the vehicle not as owner but as a borrower has stepped into the shoes of owner, but have not allowed the claim application to the extent of personal accident coverage as covered in the insurance policy. He submits in the facts of case, claim application with regard to death of Shailesh Masih ought to have been allowed to the extent of risk covered under personal accident coverage of the policy Ex.D-1. 6. Learned counsel for respondent No.1/ insurance company would submit that admittedly deceased Shailesh Masih was not owner of the -4- offending vehicle. He was driving the vehicle as borrower in which Sujit Masih owner of the vehicle was also sitting as pillion along with another pillion Anis Masih. He contended that deceased driver of the motorcycle was not possessed with driving licence as copy of licence has not been produced by claimants in the claim proceedings nor before the police official who investigated the crime. Personal accident coverage would only be applicable if the driver of motorcycle, possessing valid and effective driving licence suffers motor accidental injuries. As the offending vehicle was being driven in breach of policy condition i.e. absence of licence, the claimants will not get benefit of the clause 'Personal Accident Coverage' of driver- cum-owner. 7. I have heard learned counsel for the parties and also perused the record of claim case. 8. In the aforementioned facts of the case, it is not in dispute that deceased Shailesh Masih was not the owner of motorcycle but he was driving the vehicle in which owner of vehicle was sitting as pillion and therefore status of driver of motorcycle would be one of borrower even if the owner of motorcycle was sitting as pillion. 9. To get the benefit of insurance policy, conditions enumerated in the insurance policy is to be complied with. The insurance policy is filed as Ex.D-1. It bears the clause- "persons or classes of vehicle entitled to drive". It specifies that any person including insured provided that a person driving holds an effective driving licence at the time of accident. It further mentions that person holding effective Learner's Licence may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicle Rules 1989. -5- 10. In the case at hand, the claimants failed to produce copy of licence or Learner's Licence in the name of deceased Shailesh Masih who was driving the motorcycle at the time of accident. Copy of seizure memo prepared by police while investigating the crime is also available as Ex.P-3. In the seizure memo, there is seizure of motorcycle, registration certificate of motorcycle and copy of insurance policy. Driving Licence has not been produced before the police also during course of investigation. 11.At this stage, learned counsel for the appellant submits that it is the burden upon insurance company to prove the fact that deceased at the time of accident was not possessed with valid and effective driving licence. I am not inclined to accept such submission made by counsel for appellant for the reason that onus is upon the claimants or the person driving the vehicle to show that he was having the licence in his name authorizing him to drive the offending vehicle . If such a fact is proved by placing document or any material suggesting that on the date of accident driver was having the licence in his name then only the onus will shift upon the insurance company to prove that licence is not valid effective licence. 12. In the case at hand as licence has not been brought on record by claimants or is not seized by police during investigation, Insurance Company cannot be saddled with burden to prove it otherwise. Learned Claims Tribunal considering the decision of Hon’ble Supreme Court in case of Ningamma and Anr. Vs. United Insurance Co. Ltd. (2009) 13 SCC 710 has dismissed the application under Section 163-A of the Act of 1988. -6- 13.For the aforementioned discussions, I do not find any good ground to interfere with the impugned award passed by learned Claims Tribunal dismissing the claim application filed under Section 163-A of the Act of 1988. Appeal being sans merit is liable to be and is accordingly dismissed. Sd/- Sd/-d/- (Parth Prateem Sahu) Judge Praveen