Smt. Sarita Sharma Vs Jaiky Sharma

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Digitally signed by RAGHVENDRA JAT

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2025:CGHC:30497

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 747 of 2017

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1 - Smt. Sarita Sharma Wd/o Late Rajkumar Sharma, Aged About 38 Years R/o Dhanlaxmi Nagar Bhanpuri, Thana Khamtarai, District Raipur, Chhattisgarh, Chhattisgarh.

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2 - Vicky Sharma S/o Late Rajkumar Sharma, Aged About 19 Years R/o Dhanlaxmi Nagar Bhanpuri, Thana Khamtarai, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh.

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3 - Ku. Munni @ Monika Sharma D/o Late Rajkumar Sharma, Aged About 16 Years Minor Through Natural Guardian Mother Applicant No.1, Smt. Sarita Sharma, R/o Dhanlaxmi Nagar Bhanpuri, Thana Khamtarai, District Raipur, Chhattisgarh ..............Claimants, District : Raipur, Chhattisgarh.

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... Appellant(s)

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versus

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1 - Jaiky Sharma S/o Late Rajkumar Sharma, R/o Dhanlaxmi Nagar, Bhanpuri, P.O. Birgaon Thana Khamtarai, District Raipur,

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2

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Chhattisgarh ..............Non Applicant No.1/ Owner Of Vehicle Car No. C.G.04 L A 5555, Chhattisgarh.

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2 - United India Insurance Company Limited, Through Divisional Manager United India Insurance Company Limited, Kachhari Chauk, Jail Road, Raipur, District Raipur, Chhattisgarh ..............Non Applicant No.2/ Insurer Of Vehicle Car No. C.G.04 L A 5555, District : Raipur, Chhattisgarh.

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... Respondent(s)

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For Appellant(s)	:	Mr. Arvind Shrivastava, Advocate.
For Respondent(s)No. 1	:	None.
For Respondent No. 2	:	Mr. Tessy Abraham, Advocate on
		behalf of Mr. R.N. Pusty, Advocate.

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Hon’ble Mr. Justice Amitendra Kishore Prasad

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Order on Board

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02/07/2025

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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 05.12.2016 passed by learned 1^st Additional Motor Accident Claims Tribunal, Raipur District - Raipur (C.G.) in Claim Case No. 610/2014 ( “Smt. Sarita Sharma & Ors. vs.Jaiky Sharma & Another” ).

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Brief facts of the case, is that, on 15.02.2013 at about 12 to 3:20, in the night near Agriculture College, Thana Telibandha, DistrictRaipur, Raj Kumar Sharma was driving the Car No. C.G.

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04/LA/5555, belonging to respondent No. 1, while coming back from Mandir Hasaud to Raipur. Suddenly the tire of the front wheel burst and resultantly the unbalanced car turned down because of which said Raj Kumar Sharma sustained injuries and thereafter succumbed to injuries.

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Learned counsel for the appellant submits that vehicle was insured with United India Insurance Company and the premium was paid by the driver to the tune of Rs. 50/-. His position becomes like that of vehicle owner and as per the insurance policy, his risk cover limit is up to Rs.1,00,000.

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On the other hand, learned counsel for respondent No. 2 opposes the same.

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No one has appeared on behalf of respondent No. 1.

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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

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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 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

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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.”

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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 United India Insurance Company and premium was paid for the 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/- as such the tribunal has erred in law while dismissing the entire claim petition. The impugned award dated 05.12.2016 is hereby set aside and instead of dismissal a sum of Rs. 1,00,000/- is awarded to the appellants/claimants 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 appellants/claimants who are legal heirs of the deceased along with interest at the rate of 6% from the date of application.

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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

Smt. Sarita Sharma v. Jaiky Sharma

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Smt. Sarita Sharma v. Jaiky Sharma

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