Surendra Kumar Thakur Vs Smt. Bahura Bai

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Digitally signed by RAGHVENDRA JAT

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2025:CGHC:32740

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1323 of 2017

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1 - Surendra Kumar Thakur S/o Late Uderam Thakur, Aged About 28 Years R/o Muchedand, Police Station Dongargaon, Tahsil Chhuriya, Distrit Rajnandgaon Chhattisgarh...........Owner, Chhattisgarh.

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... Appellant(s)

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versus

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1 - Smt. Bahura Bai Wd/o Late Uderam Thakur, Aged About 48 Years R/o Village Muchedand, Police Station Dongargaon, Tahsil Chhuriya, District Rajnandgaon Chhattisgarh., Chhattisgarh.

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2 - Bhuwan Lal Thakur, S/o Late Uderam Thakur, Aged About 30 Years Caste Halba, R/o Village Muchedand, Police Station Dongargaon, Tahsil Chhuriya, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh.

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3 - Lokesh Kumar S/o Late Uderam Thakur, Aged About 5 Years Caste - Halba, Minor Represented Through Mother Smt. Bahura Bai Respondent No. 1, R/o Village Muchedand, Police Station Dongargaon, Tahsil Chhuriya, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh.

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4 - The Oriental Insurance Company Limited, Registered Office Oriental House A - 25 / 27, Asaf Ali Road New Delhi, Branch Office Near Railway Station Rajnandgaon Chhattisgarh...........Claimants, District : Rajnandgaon, Chhattisgarh

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... Respondent(s)

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For Appellant(s)	: Mr. Abhishek Sharma, Advocate.
For Respondent(s) No.	: Mr. Utkarsh Patel, Advocate on behalf of
1 to 3	Mr. Pushpendra Kumar Patel, Advocate.
For Respondent No. 4	: Mr. Pravin Kumar Tulsyan, Advocate.

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Hon’ble Mr. Justice Amitendra Kishore Prasad

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Order on Board

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14/07/2025

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This appeal has been preferred by the appellants under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 16.05.2017 passed by learned 1^st Upper Motor Accident Claims Tribunal, Rajnandgaon in Claim Case No. 88/2015 ( “Smt. Bahura Bai & Ors. vs. Surendra Kumar Thakur & Another” ).

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Brief facts of the case, is that, the claimants have filed an application under Section 163-A of the Motor Vehicles Act stating that on 03.03.2013 at around 8:00 PM, near Village Mobar Road, the deceased Uderam Thakur was sitting on a motorcycle (bearing registration No. CG 0 NC/5307), which was driven by late Tularam Rawate. Thereafter, the motorcycle collided with a tractor trolley from the back, causing both Uderam Thakur and Tularam Rawate was died on the spot. Claimants No. 1 to 3 are the wife and children of the deceased Uderam Thakur, assert that the vehicle was driven by the brother of claimant No. 1 and owned by the son of claimant No. 1. The claimants have claimed a total compensation of Rs. 15,40,000/- from the non-applicants, jointly

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and severally. The insurance company filed a reply, denying the claims made by the claimants, and the vehicle owner also submitted a reply. After evaluating the evidence, the learned Tribunal calculated the compensation amount at Rs. 3,19,000/- but erroneously exonerated the insurance company, concluding that late Tularam (the driver of the motorcycle at the time of the accident) did not possess a valid driving license. As a result, the present appeal has been filed. The appellant has already deposited the mandatory amount of Rs. 25,000/- before the Claims Tribunal.

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Learned counsel for the appellant submits that vehicle was insured with oriental insurance company and the premium of Rs. 50/- was paid for owner-cum-driver. 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/- and the driver tularam was having valid and effective driving license to drive the offending vehicle. He further submits that vide order dated 12.06.2024, the Hon’ble Court has directed to the insurance company to verify the driving license of the Tularam (Annexure A/3). In compliance of said order the insurance company i.e. R-4 has filed an application i.e. application for taking document on record along with verification report. As per said report driving license was valid and effective to drive the offending vehicle on the date of accident.

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On the other hand, learned counsel for respondent No. 1 to 3 opposes the same.

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Learned counsel for insurance company submits that the deceased was the borrower and pillion rider, therefore, his risk is not covered under the policy and, therefore, insurance company is not liable to pay compensation and, therefore, the claim petition is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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As regards the argument of learned counsel for the appellant 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 , 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:

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“9.4 An identical question came to be considered by this

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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

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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.”

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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 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:

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“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.

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Considering the facts and circumstances of the case, the offending vehicle was insured with oriental insurance company and premium was paid for the owner -cum- driver to the tune of Rs. 50/- as such even if the driver was negligent and he was driving a vehicle in rash and negligent manner as per Ramkhildali (supra) he is liable to receive an amount of Rs. 1,00,000/- and the deceased was

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borrower, therefore, the impugned award dated 16.05.2017 is hereby set aside and instead of dismissal a sum of Rs. 1,00,000/-

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is awarded to the appellant who are legal heirs of the deceased.

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In that view of the matter, the appeal is partly allowed . It is directed that the insurance company is liable to pay the compensation of Rs. 1,00,000/- to the appellant who are legal heirs of the deceased along with interest at the rate of 6% from the date of revised awarded amount.

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Records of the Tribunal along with a copy of this order be sent back forthwith for compliance and necessary action, if any.

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Sd/-

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(Amitendra Kishore Prasad) Judge

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Raghu Jat

Surendra Kumar Thakur v. Smt. Bahura Bai

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Surendra Kumar Thakur v. Smt. Bahura Bai

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