Icici Lombard General Insurance Company Limited Vs Khorbahra Dhruv

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1

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1483 of 2019

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Icici Lombard General Insurance Company Limited Through Its Legal Manager, Vanijya Bhawan, Ground Floor, Devendra Nagar, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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... Appellant(s)

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versus

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1. Khorbahra Dhruv S/o Late Ghasiram Dhruv Aged About 50 Years R/o Village Polkarra, Police Station Fingeshwar, District Gariyaband Chhattisgarh Present Address Chhattisgarh Nagar, Police Station Tikrapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2. Smt. Sumitra Dhruv W/o Khorbahra Dhruv Aged About 30 Years R/o Village Polkarra, Police Station Fingeshwar, District Gariyaband Chhattisgarh Present Address Chhattisgarh Nagar, Police Station Tikrapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3. Mithun Dhruv S/o Khorbahara Dhruv Aged About 17 Years Minor Through Represented Mother Smt. Sumita Dhruv (Respondent No. 2) R/o Village Polkarra, Police Station Fingeshwar, District Gariyaband Chhattisgarh Present Address Chhattisgarh Nagar, Police Station Tikrapara, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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4. Fageshwar Sahu @ Ram S/o Govind Ram Sahu R/o Sonesili Police Station Fingeshwar, District Gariyabandh Chhattisgarh. ... Motrocycle No. C.G. 04 Hj 2493 ( Dirver Cum - Owner ), District : Gariyabandh, Chhattisgarh

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5. Toman Kumar Nishad S/o Shri Anand Nishad R/o Belsonda, Mahsamund, District Mahasamund, Through Shri Ram Auto Mobiles Arang, Police Station Arang, District Raipur Chhattisgarh. (Motorecycle No. C.G. 04lf 1389 ) (Owner), District : Raipur, Chhattisgarh

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... Respondent(s)

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2

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For Appellant :	Ms. Harneet Kaur, Advocate on behalf of
	Mr. Sourabh Sharma, Advocate
For Respondent No. 4 :	Mr. Sangeet Kumar Kushwaha, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board

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07-10-2025

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1) This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) has been preferred by the appellant (Insurance Company) challenging the impugned award dated 16.05.2019 passed by learned First Additional Motor Accident Claim Tribunal, Raipur, District- Raipur (C.G.) in Claim Case No. 302/2017, whereby learned Claims Tribunal has awarded a total sum of Rs. 5,00,000/- as compensation to the claimants on account of death of Rohit Dhruv and the liability of payment of compensation has been fastened upon the appellant/Insurance Company.

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2) Brief facts of the present case, are that on 09.09.2017 at about 7:00 p.m., the driver-cum-owner of offending motorcycle bearing registration No. CG-04-HJ-2493 dashed the motorcycle driven by deceased bearing registration No. CG-04-LF-1389 owned by Toman Kumar Nishad. In the said accident deceased sustained grievous injuries resulting into his death. Respondents No. 1 to 3 herein [father, mother and minor brother of deceased] filed a claim application under Section 163-A of Act of 1988 pleading that deceased was aged about 25 years and used to earn Rs. 40,000/per annum and under various heads, claimants have claimed

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compensation of Rs. 10,90,000/-. Learned Tribunal framed issues ; parties led evidence and thereafter, learned tribunal passed the award impugned.

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3) Learned counsel for the appellant submits that the deceased borrowed the vehicle from respondent No.5, namely, Toman Kumar Nishad, therefore, he would fall under the category of owner of the vehicle under Section 2(30) of the Act, 1988; thus, the claimants would not be entitled for any compensation under Section 163-A of the Act, 1988 and the impugned award may be set-aside.

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4) On the other hand, learned counsel for the respondent No. 4 submits that the learned tribunal has passed just and proper compensation; thus, the instant appeal deserves to be dismissed.

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5) I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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6) It is not in dispute that the accident occurred as the driver-cumowner of offending motorcycle dashed the motorcycle driven by deceased which was owned by respondent No. 5 herein and it was duly insured with the appellant (Insurance Company) covering the risk of third party for which appropriate premium had been paid.

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7) The only question involved in this appeal is, “whether the deceased would fall under the category of third party for claiming

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compensation under Section 163-A of the Act of 1988, as third party risk is covered by the Insurance Policy?

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8) “Owner” has been defined under Section 2(30) of the Act of 1988

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which states as under:

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“2. Definitions – In this Act, unless the context otherwise requires, - (30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement; ”

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9) A careful perusal of the aforesaid definition would show that “owner” would cover the person (i) in whose name the motor vehicle stands registered, (ii) if such person is a minor, his/her guardian, and (iii) if the motor vehicle is the subject of a hirepurchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the said vehicle under that agreement. Section 2(30) of the Act of 1988 creates legal fiction of ownership in favour of lessee only for the purpose of the Act of 1988, but not for the purpose of law in general (See: Industrial Credit and Development Syndicate Limited v. Commissioner of Income Tax, Mysore and Another¹ ).

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10) In the instant case, the appellant (Insurance Company) has solely pleaded that since deceased Rohit Dhruv was driving the offending vehicle, he would not come under the category of third party. It was

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1 . (2013) 3 SCC 541

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not pleaded by the appellant (Insurance Company) that deceased would fall under the category of ‘owner’ as defined under Section 2(30) of the Act of 1988. Even otherwise, it is not the case of the appellant (Insurance Company) that deceased was the registered owner of the vehicle as it is admitted fact that respondent No. 5 herein was the registered owner of the vehicle and it is also not the case of the appellant (Insurance Company) that the offending vehicle was subject matter of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation and was in the possession of the deceased under any of the aforesaid agreements. In that view of the matter, it cannot be held that deceased was driving the vehicle in the capacity of the ‘owner’.

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11) In my considered opinion, though deceased was related to the owner of the vehicle, yet he would fall within the category of third party as he was not the owner and had borrowed the vehicle from the owner and since the vehicle was duly insured covering the risk of third party, the respondents No. 1 to 3/claimants have rightly been held entitled for grant of compensation of Rs. 5,00,000/under Section 163-A of the Act of 1988. I do not find any infirmity or illegality in the impugned award. Accordingly, this appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

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Sd/-

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(Rakesh Mohan Pandey) JUDGE

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A j i n k y a

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Digitally signed by AJINKYA PANSARE Date: 2025.10.07 17:37:10 +0530

Icici Lombard General Insurance Company Limited v. Khorbahra Dhruv

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Icici Lombard General Insurance Company Limited v. Khorbahra Dhruv

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