1 2025:CGHC:18331 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 817 of 2018 1 - National Insurance Company Limited, Registered And Head Office, Middleton Street Kolkata (W.B.) Through Divisional Manager, Division Officer, Akash Ganga Parisar, Supela Bhilai, Tahsil And District Durg Chhattisgarh. Insurance Policy No./ Cover Note No. 203234598 Engine No. JA12ABEGG07599 Chassis No. MBLJA12ACEGG05924 Validity 21.12.2014 To 20.12.2015. (Insurer of Hero Honda Passion Pro No. CG-04-HR- 0324). ... Appellant versus 1 - Smt. Hemlata Sahu W/o Late Santosh Sahu Aged About 26 Years R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. 2 - Kumari Kuleshwari Sahu D/o Late Santosh Sahu Aged About 7 Years Minor, Through Natural Guardian Mother Smt. Hemlata Sahu Wd/o Late Santosh Sahu, R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. 3 - Kumari Isha Sahu D/o Late Santosh Sahu Aged About 5 Years Minor, Through Natural Guardian Mother Smt. Hemlata Sahu Wd/o Late Santosh Sahu, R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. 4 - Kumari Mitali Sahu S/o Late Santosh Sahu Aged About 3 Years Minor, Through Natural Guardian Mother Smt. Hemlata Sahu Wd/o Late Santosh Sahu, R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. Digitally signed by HEERA LAL SAHU Date: 2025.04.24 10:44:19 +0530 2 5 - Nammuram Sahu S/o Late Raruha Ram Sahu Aged About 67 Years R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. 6 - Smt. Khorbahrin Sahu W/o Nammuram Sahu Aged About 60 Years R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod, Chhattisgarh. 7 - Hemshekhar Yadu S/o Pawan Yadu Aged About 27 Years R/o Village And Post Gondpendri, Police Station Utai, Tahsil Patan, District Durg Chhattisgarh. (Driver Of Hero Honda Splendor Pro No. C.G.-04/DW/6139). 8 - Deruram Yadav S/o Chunuram Yadav Aged About 45 Years R/o Village Funda ( S R T Agro Site ) P. Devada, Police Station And Tahsil Patan, District Durg Chhattisgarh. (Registered Owner of Hero Honda Splendor Pro No. C.G. 04/DW/6139). 9 - Kamleshwar Sahu S/o Nammuram Sahu Aged About 30 Years R/o Village And Post Mohara, Police Station And Tahsil Gurur, District Balod Chhattisgarh, Presently Residing At Sanjay Nagar, Near Yaduwanshi Kirana Stores, Sarona, Raipur, Police Station Tatibandh, Raipur Tahsil And District Raipur Chhattisgarh. (Registered Owner of Hero Honda Passion Pro No. C.G.-04 - HR – 0324). ... Respondents For Appellant : Mr. Qamrul Aziz, Advocate. For Respondent No. 7 : Mr. Punit Ruparel, Advocate. For Respondent No.8 : Ms. Swksha Sharma, Adv. on behalf of Ms. Aditi Singhvi, Advocate. For Respondent No. 9 : Mr. S.P. Sahu, Advocate. (Hon'ble Shri Justice Sanjay Kumar Jaiswal ) Order on Board 23/04/2025 1. This appeal has been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 08.03.2018 passed by learned 3 First Additional Motor Accident Claims Tribunal, Durg of Court of Second Additional Motor Accident Claims Tribunal, Durg, District - Durg (C.G.) in Claim Case No.477/2016, whereby the Tribunal has awarded compensation of Rs.8,38,000/- with interest @ 7% per annum, from the date of application till its realization, in favour of the claimants for their irreparable loss. 2. The facts necessary for disposal of this appeal, in brief, are that on 13.07.2015 at about 4:45 am, when deceased Santosh Kumar Sahu while going from home village Mohara, Tahsil Gurur, District Balod to Raipur on his motorcycle Hero Honda Passion Pro bearing registration No. CG-07-HR- 0324, at about 6:30 am, near Village Motipur, he was dashed by offending vehilce hero Honda Splendor bearing registration No. CG-04-DW-6139 which was driven rashly and negligently by Hemshekhar Yadu/respondent No.7, caused grievous injuries to Santosh Kumar Sahu. He was admitted to life Birth Super Speciality Hospital, Samta Colony, Raipur, where at about 2:30 pm, he succumbed to injuries. The claimants who are the widow, children and parents of the deceased, filed a claim application under Section 166 of the Motor Vehicles Act against the owner and the insurer of the said motorcycle. The Tribunal after considering the evidence brought on record awarded total compensation of Rs.8,38,000/- with interest @ 7% per annum, from the date of application till its realization in favour of the claimants, in which, the Insurance Company has also been held liable for payment of 1/2 compensation. The drivers of both motorcycles have been held liable for 50- 50% contributory negligence. 3. Learned counsel for the appellant/Insurance Company (insurer of Hero Honda Passion Pro) submits that since the deceased himself was the driver, he was not a third party to 4 the offending motorcycle. His position becomes like that of vehicle owner and as per the insurance policy Ex.D-1, his risk cover limit is up to Rs.1,00,000. Therefore, the award passed by the Tribunal being more than the limit of Rs.1,00,000/- is contrary to the policy. 4. On the other hand, it has been argued on behalf of learned counsel for the respondents that in the facts and circumstances of case, the impugned award passed by the Claims Tribunal is just and proper and does not require any interference. 5. Heard learned counsel for the parties and perused the record. 6. According to the facts and evidence available on record, Kamleshwar Sahu, brother of the deceased Santosh, is the owner of the motorcycle Hero Honda Passion Pro, which was driven by the deceased Santosh Kumar and the appellant is the insurer itself of the said vehicle. The tribunal has determined 50-50% contributory negligence on the part of both drivers of the motorcycles. Thus, the appellant/ insurance company has been found liable for payment of 1/2 i.e. Rs. 4,19,000/- of total awarded compensation. The appellant/insurance company contended that he is liable to pay the compensation only up to Rs. 1 lakh as per the insurance policy. 7. As regards the argument of learned counsel for the Insurance Company that the deceased being the driver of the vehicle in question does not fall in the category of a third party, law on this point is already settled by the Supreme Court in the matter of Ramkhiladi and another vs. United India Insurance Company and another, reported in (2020) 2 SCC 550 wherein the Supreme Court, relying upon its own case rendered in the matter of Ningamma v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710, 5 has specifically observed and held that the provisions of Section 163-A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. Para 9.4 is relevant for the purpose, which is reproduced as under: “9.4 An identical question came to be considered by this Court in Nigamma. In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing Registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motorcycle bearing Registration No.RJ 29 2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motorcycle bearing Registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent- owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in Ningamma and as the deceased has stepped into the shoes of the owner of the vehicle bearing Registration No.RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163-A of the Act against the owner and insurance company of the vehicle bearing Registration No. RJ 02 SA 7811 shall not be maintainable.” 8. Having applied the principles laid down by the Supreme Court in the above referred matter to the present case, it is held that the claim petition filed under Section 166 of the Act, 1988 is not maintainable. Having observed and held as such, the Supreme Court, however, restricted the claimants 6 to entitle personal accident cover strictly as per terms of insurance contract covering borrowed vehicle, which is sum of Rs.1 lakh and awarded interest as well. Para 9.8 is relevant for the purpose and is reproduced as under: “9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. 9. Reverting to the facts of the present case, undisputedly, the accident occurred when the motorcycle driven by the deceased and met accident with another motorcycle. The said motorcycle was insured with appellant herein. The insurance policy in respect of the motorcycle has been brought on record marked as Ex.D1. On perusal of Ex.D-1, it appears that Rs.50 was received by the insurance company to cover the risk of personal accident to the owner- driver to the extent of Rs.1,00,000/-. As per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh. Since the vehicle was being driven by the deceased himself as borrower of the vehicle from the owner, he had stepped into the shoes of the owner, therefore, he was not a third party to the vehicle in question. 10. Hence, in the light of the principles laid down by the Hon’ble Supreme Court in the above referred matters, the argument/ground raised by the Insurance Company is accepted. If the liability of the Insurance Company arises, it will be limited to Rs.1,00,000/-. Even otherwise, as per insurance policy Ex.D-1, the insurance company will cover the risk of personal accident to the owner-driver to the extent of Rs.1,00,000/-. 11. In that view of the matter, the appeal preferred by the Insurance Company is partly allowed. It is directed that the 7 appellant/insurance company is liable to pay the compensation up to Rs. 1,00,000/- out of 1/2 of the total awarded compensation by the Claims Tribunal. The impugned award stands modified to the above extent, and the rest of the conditions, including interest rate, shall remain intact. 12. Records of the Tribunal along with a copy of this order be sent back forthwith for compliance and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge H.L. Sahu