1 2025:CGHC:32106 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1509 of 2018 1 - ICICI Lombard General Insurance Company Limited Through Its Legal Manager, Vanijya Bhawan, Ground Floor, Devendra Nagar, Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant(s) versus 1 - Smt. Seema Sen W/o Late Tareshwar Sen, Aged About 29 Years R/o Village Piproud, P.S. Gobranavapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Rishikesh Sen, S/o Late Tareshwar Sen, Aged About 9 Years Minor Through Natural Guardian Mother Smt. Seema Sen, Respondent No. 1, R/o Village Piproud, P.S. Gobranavapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Riturani Sen, D/o Late Tareshwar Sen, Aged About 7 Years Minor Through Natural Guardian Mother Smt. Seema Sen, Respondent No. 1, R/o Village Piproud, P.S. Gobranavapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 4 - Divya Prakash Sen, S/o Late Tareshwar Sen, Aged About 6 Years Minor Through Natural Guardian Mother Smt. Seema Sen, Respondent 2 No. 1, R/o Village Piproud, P.S. Gobranavapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 5 - Smt. Kachra Bai Sen, W/o Late Naranan Sen, Aged About 58 Years R/o Village Piproud, P.S. Gobranavapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 6 - Dujram Sen, S/o Late Latel Sen, Aged About 45 Years R/o Village Kendri, P.S. Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Sourabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate For Respondent(s) : Ms. Prachi singh, Advocate on behalf of Mr. Raghvendra Pradhan, Advocate (Hon'ble Shri Justice Amitendra Kishore Prasad) Order on Board 10.07.2025 1. This appeal has been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 18.07.2018 passed by 4th Additional Motor Accident Claims Tribunal, Raipur (C.G.) in Claim Case No.481/2016, whereby the Tribunal has awarded compensation of Rs.5,00,000/- with interest @ 9% per annum, from 08.09.2015. 2. The facts necessary for disposal of this appeal, in brief, are that on 14.08.2017, when deceased Sudhir Kumar Thakur was coming from Dharsiwa to Raipur driving the vehicle Activa bearing 3 registration CG 04 LP 0120 owned by Respondent No.4 Pinky Thakur (wife of the deceased) and when he reached near Dharsinwa bridge, about 9:40 PM he met with an accident with an unknown vehicle, as a result of which, Sudhir Kumar Thakur suffered grievous injuries and died on the spot. The claimants who are the children of the deceased, filed a claim application under section 163A 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.5,02,500/- with interest @ 9% per annum, from the date of application till its realization in favour of the claimants, in which, the Insurance Company has been held liable for payment of compensation. 3. Learned counsel for the Insurance Company submits that since the deceased himself was the driver, he was not a third party to 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. 4 6. 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 1 , wherein the Supreme Court, relying upon its own case rendered in the matter of Ningamma v. United India Insurance Co. Ltd. 2 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 1 (2020) 2 SCC 550 2 (2009) 13 SCC 710 5 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.” 7. 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 163-A of the Act, 1988 is not maintainable. Having observed and held as such, the Supreme Court, however, restricted the claimants 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. 6 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.” 8. Reverting to the facts of the present case, undisputedly, the accident occurred when the motorcycle driven by the deceased and met accident with unknown vehicle. The said motorcycle was insured with Respondent No.4. 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.1,00,000/-. Since the vehicle was being driven by the deceased himself/herself 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. 9. 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 7 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/-. 10. In that view of the matter, the appeal preferred by the Insurance Company is partly allowed. It is directed that the claimants shall be entitled for compensation of Rs.1,00,000/- instead of Rs.5,00,000/- as awarded by the Tribunal. In the event any excess amount has been paid to the claimants, the same shall be liable to be recovered. The impugned award stands modified to the above extent and rest of the conditions including interest rate shall remain intact. 11. Records of the Tribunal along with a copy of this order be sent back forthwith for compliance and necessary action, if any. Sd/- (Amitendra Kishore Prasad) Judge Gopal Singh/Saxena ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA