1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1155 of 2018 1 - United India Insurance Company Limited, City Branch Office Korba, Plat No. 183, Second Floor, Stadium Road, Behind Balaji Petrol Pump, Transport Nagar Korba District Korba Chhattisgarh. ... Appellant Versus 1 - Smt. Ame Bai Chandra W/o Late Girish Chand Chandra Aged About 52 Years R/o Village Salni, Thana And Tehsil Jaijaipur District Janjgir Champa Chhattisgarh. 2 - Gurudev Prasad Chandra S/o Late Girish Chandchandra Aged About 28 Years R/o Village Salni, Thana And Tehsil Jaijaipur District Janjgir Champa Chhattisgarh. 3 - Ku. Tara Chandra Late Girish Chand Chandra Aged About 18 Years R/o Village Salni, Thana And Tehsil Jaijaipur District Janjgir Champa Chhattisgarh. 4 - Smt. Lakeshwari Chandra D/o Late Girish Chand Chandra Aged About 33 Years W/o Jhangleshwar Chandra R/o Village Kharri, Thana And Tahsil Malkharoda, District Janjgir Champa Chhattisgarh. 5 - Manoj Kumar Chandra S/o Late Girish Chandr Chandra , Aged About 31 Years R/o Village Salni Thana And Tehsil Jaijaipur District Janjgir Champa Chhattisgarh. ( Vehicle Owner ) ...Respondent(s) For Appellant : Shri Sudhir Agrawal, Shri Shashank Agrawal and Ms. Prerana Agrawal, Advocates. For Respondents1 to 4 : Shri H.S. Patel, Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment reserved on 10.09.2024 Judgment delivered on 03.01.2025 1. Present is a Misc. Appeal filed under Section 173 of the Motor Vehicles Act, 1988 (in short, MV Act) by the appellant/insurance company against the award dated 20.02.2018 passed by the IInd Additional Motor Accident Claims Tribunal, Sakti, District Janjgir Champa in Claim Case No.37 of 2017 whereby the claim case filed by the claimants Digitally signed by INDRAJEET SAHU Date: 2025.01.04 10:54:44 +0530 2 have been partly allowed and an amount of Rs.3,46,003/-has been awarded as compensation. 2. Brief facts of the case are that, on 05.04.2017 while the deceased Girish Chandra was coming to his house from village Faguram by Motorcycle bearing registration No.CG-11-AK-1633 owned by Manoj Kumar and when he reached near Charaudi turning, all of a sudden, a cattle came in front of his motorcycle and to save himself, he dashed with the platform of the turning by which he received grievous injuries and died on the spot. Merg was registered against the deceased himself. 3. The claimants, who are the wife and children of the deceased Girish Chandra, have filed a claim case under Section 163-A of the MV Act claiming total compensation of Rs.13,54,000/- with a pleading that at the time of accident the deceased was aged about 56 years, he was employed with non applicant No.1 Manoj Kumar by which he was earning Rs.3300/-per month and maintaining his family and they were dependent upon the deceased, on account of death of deceased they are suffering from their livelihood, therefore compensation amount may be awarded to them. 4. The non applicant No.1 have contested the case of the complainant and have submitted in his written statement that the deceased Girish Chandra was his employee. The motorcycle was duly insured with the insurance company and package policy was issued for the same. At the time of accident the deceased was having valid and effective driving license to drive the vehicle and after seeing the driving license he employed him (deceased). There is no breach of policy condition 3 and therefore liability to pay compensation, if any, is upon the insurance company. 5. The non applicant No.2/insurance company also contested the claim and filed their written statement with a pleading that all the legal representatives of the deceased have not been made as a party in the case. The accident occurred due to negligent act of the deceased himself. He was not having valid and effective driving license at the time of accident and the deceased was driving the vehicle in violation of policy condition without any knowledge of its owner i.e. the non applicant No.1. Therefore, the insurance company is not liable to pay any compensation. 6. Based on the pleadings made by the respective parties, the Tribunal framed four issues and after recording evidence of the parties, partly allowed the claim application of the claimants and awarded Rs.3,46,003/- as compensation in favour of the claimants and liability has been fastened upon the appellant insurance company to pay the same which is under challenge in the present appeal. 7. Learned counsel for the appellant/insurance company would submit that deceased was the father of non applicant No.1, the owner of the vehicle, and the claimants are his wife and children. The application under Section 163-A of the MV Act is not maintainable in the facts of the case as the deceased being father of the owner of the motorcycle was stepping into the shoes of owner and was driving the vehicle at the time of accident. A false plea was raised by the claimants that the deceased, who is father of the owner of motorcycle, was an employee of his own son Manoj Kumar. Package policy was issued in favour of 4 said motorcycle but no premium was paid to cover the risk of personal accident. The deceased was not a third party whereas the Tribunal has considered him as a third party which is erroneous. The deceased was not having valid and effective driving license to drive the vehicle and despite asking for submission of his driving license, the same has not been produced by the non applicant No.1 and thereby there is a breach of policy condition. Further, while driving motorcycle the deceased himself fell down on account of rash and negligent driving of the said motorcycle and he himself is responsible for the accident. Therefore, the liability cannot be fastened upon the insurance company as risk of personal accident was not covered with the said policy. Therefore, the Tribunal has erroneously passed the award and imposed liability upon the insurance company which is liable to be set aside. 8. On the other hand, the counsel for respondents No.1 to 4/claimants have opposed the submissions made by counsel for the appellant/insurance company and have submitted that in the written statement the insurance company has not taken any defence that the claim application under Section 163-A of MV Act is not maintainable; no premium for personal accident was paid and the deceased was not having any driving license at the time of accident. He would also submit that the application filed under Order 11 Rule 16 of CPC has been dismissed by the Tribunal vide order dated 09.11.2017. No offence was registered against the deceased for driving the vehicle without license which further proves that deceased was having valid and effective driving license at the time of accident. Even if any breach of policy condition was found in the case, the insurance company should pay 5 the amount of compensation to the claimant and they may recover the same from the owner of the vehicle. 9. In support of their cross objection, he would further submit that total amount of compensation of Rs.3,46,003/- has been awarded by the Tribunal whereas the Government of India has issued a notification on 22.05.2018 in which it has been notified that in a case of fatal accident resulting in death, in claim cases filed under Section 163-A of MV Act, the amount of compensation shall not be less than five lakh rupees therefore, the amount of compensation be enhanced to Rs.5,00,000/- along with interest. 10. I have heard the counsel for the parties and perused the records. 11. Section 163 (A) of the Motor Vehicle Act provides for a special provision for payment of compensation in a structure formula. That in order to make out a case under Section 163(A), the claimants need not prove a wrongful act, negligence or default on the part of the owner of the vehicle. For ready reference 163 (A) is reproduced here-in-under:- [163A. Special provisions as to payment of compensation on structured formula basis :- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.— For the purposes of this sub- section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. 6 (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 12. From the plain reading of the aforesaid provision it is evidently clear that in order to make out a case under Section 163(A) the claimant has to be a third party or a third person unrelated to the owner in any manner. 13. From the admitted factual matrix of the case, the deceased in the instant case is the father of respondent No.1 who is owner of the vehicle. Thus, for all practical purposes the deceased had stepped into the shoes of the owner and thereby he was driving the vehicle in the capacity of the owner, although the claimants as well as respondent No.1 pleaded that the deceased was the employee of respondent No.1. 14. It would be relevant at this juncture to take note of the fact that in case of Ningamma and another Vs. United India Insurance Company Ltd. reported in 2009-13 SCC 710, the Hon’ble Supreme Court in paragraphs 20 to 22 has held as under: “20. It was held in Oriental Insurance Co. Ltd. Vs. Rajni Devi Reported in 2008 5 SCC 736 that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. 21. In our considered opinion, the ratio of the decision Oriental Insurance Co. Ltd.Vs. Rajni Devi, reported in 2008 5 SCC 736 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 employee of the owner of the motorbike although he was authorised to drive the said vehicle 7 by its owner, and therefore, he would step into the shoes of the owner of the motorbike.19.We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the 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. 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 under Section 163-A. 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. 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.” 15. A Similar view has further been reiterated by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Sinitha and others reported in 2012 (2) SCC 356 wherein paragraph 41 and 42 it has been held as under:- 41. The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a third party. It seems, that the instant determination raised at the hands of the learned counsel for the petitioner, is based on the determination rendered by this Court in Oriental Insurance Company Limited vs. Jhuma Saha, (2007) 9 SCC 263, wherein, this Court held as under : "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." According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163A of the Act. 8 42. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders.” 16. Similarly, the Hon’ble Division Bench of this Court in the case of Smt. Sakum Kushwah and others Vs. Dhaniram and others in MAC No. 636 of 2007 decided on 04.01.2011 relying upon the decisions in the case of Ningamma (supra) as also in the case of Oriental Insurance Company Ltd Vs. Rajni Devi and others reported in 2008 (5) SCC 736, in paragraphs 6 to 8 has held as under:- 6. Hon'ble the Supreme Court in case of Oriental Insurance Company Ltd., Vs. Rajnidevi; reported in (2008) 5 SCC 736 has held that section 163-A 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 163-A 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 163-A of the Act. 7. Further in case of Ningamma and another Vs. United India Insurance Company Limited reported in 2009 (13) SCC 710 the Supreme Court while referring to the case of Oriental Insurance Company Ltd., Vs. Rajnidevi (Supra), held vide Paras 21 & 22 as follows: "21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. 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 9 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 163-A of the MVA hereinbefore. A bare perusal of the 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. 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 under section 163-A 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 under Section 163-A 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 other vehicle. Since the deceased had stepped into shoes of owner of the vehicle, section 163-A 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 163-A. In view of the above discussion, we are not inclined to interfere with the impugned award dated 17.01.2007 passed by the Tribunal” 17. In the matter of Ramkhiladi Vs. The United India Insurance Company, 2020 (2) SCC 550, the Hon’ble Supreme Court has observed in paragraph 5.5 as under: “5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811." 10 18. In a case under Section 163-A of the MV Act, the owner of the vehicle is liable to pay compensation if he causes injury or death of another person that is why the owner of the vehicle purchases insurance policy. In that case, the owner becomes the first party and the insurer becomes the second party. Now the question is whether the deceased was a third party or not. 19. Reverting to the facts of the present case it appears that the deceased Girish Chandra was the father of Manoj Kumar who was the owner of vehicle. Manoj Kumar has been examined as NAW-1 and he admitted in his cross examination that deceased Girish Chandra was his father. He did not tell about the particulars of driving license of his father. 20. From the evidence of of AW-1 Gurudev Prasad Chandra, AW-2 Krishna Kumar and NAW-1 Manoj Kumar (owner of the vehicle) it appears that the deceased was said to have been residing separately from them and was employed with Manoj Kumar. The claimants as well as non applicant No.1 are close relative. The deceased was the father of non applicant No.1 Manoj Kumar. In their close relationship, it cannot be presumed or said that deceased was employed with his own son for Rs.3300/- per month. No specific work was assigned to him and he was said to have been employed for agricultural work and to drive the motorcycle. One cannot expect that a person can be employed to run motorcycle of employer. Further, although the non applicant No.1 has given evidence that the deceased was employed to manage his agricultural work, but how much land he owned or what type of agricultural work the deceased was assigned has not been proved by the parties. 11 21. Further, from perusal of policy certificate Ex.D/1 it is quite clear that no premium for personal accident was paid by the owner of the vehicle and the risk of owner for personal accident was not covered under the policy despite being a package policy. Further, no driving license was produced or proved by the claimants as well as non applicant No.1 that the deceased was having valid and effective driving license at the time of accident. The Tribunal after considering the evidence led by the claimants as well as non applicant No.1 Manoj Kumar who stated that he had seen the driving license of the deceased and then only he employed him as his driver and since at the time of accident his driving license was missing therefore he was unable to produce it, the Tribunal held that there is no breach of any policy condition even the driving license is not produced in the case. It was further held that even if no offence was registered against the deceased for not having valid driving license at the time of accident, but the fact remains that the witnesses have admitted that the deceased was having driving license at the time of accident, therefore, it cannot be taken into consideration as violation of policy condition. The Tribunal considering the deceased as third party awarded the amount of compensation under Section 163- A of the MV Act. 22. From the facts and circumstances of the case, as also the evidence available on record, it would be very difficult for this court to hold that deceased was an employee of non applicant No.1 to drive his motorcycle particularly in the fact where deceased was his father. No one can employ his own father to drive his motorcycle as pleaded in the present case. It appears that only to obtain compensation the said 12 fact have been pleaded in the claim case for maintaining the application under Section 163-A of the MV Act. The Tribunal has not considered this aspect of the matter and also that the premium for personal accident has not been paid by the owner of the vehicle which does not cover the risk of owner. This court finds that the deceased was stepping in the shoes of owner and has met with an accident while driving his motorcycle when a cattle came in front of his vehicle suddenly by which the accident occurred and he died. This court is of the opinion that in the facts and circumstances of the case the application filed by the claimants under Section 163-A of the MV Act was not maintainable, yet the Tribunal has awarded compensation and liability has been fastened upon the insurance company. 23. For the aforesaid reasons, this court is of the considered view that the Tribunal has erred in partly allowing the claim application of the claimants filed under Section 163-A of the MV Act. Accordingly, the appeal filed by the appellant/insurance company is allowed and the claim application filed under Section 163-A of MV Act is dismissed by setting aside the impugned award dated 20.02.2018 passed by the learned Claims Tribunal. 24. Since the claim application itself is dismissed as not maintainable and the award is set aside, the cross appeal filed by the claimants also stand dismissed. Sd/- (Ravindra Kumar Agrawal) Judge inder