Chattisgarh High Court
National Insurance Company Limited vs Udayram Kothari on 9 April, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.11
10:24:39 +0530
2025:CGHC:16764
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1043 of 2019
National Insurance Company Limited Through Divisional Manager,
Division Office Supela Bhilai District- Durg, Chhattisgarh ............
(Insurance Co.)
... Appellant
versus
1. Udayram Kothari S/o Mansharam Aged About 50 Years R/o
Dallirajhara- Tahsil- Balod, District- Balod, Chhattisgarh.
2. Smt. Tijobai W/o Udayram Kothari Aged About 48 Years R/o
Dallirajhara- Tahsil- Balod, District- Balod,
Chhattisgarh...................(Claimant)
3. Harish Kumar Rawate S/o Rekhalal Rawate Aged About 23 Years
R/o Badgaon Tahsil Dondilohara District- Balod,
Chhattisgarh..................(Owner Of The Vehicle)
... Respondent(s)
For Appellant : Mr. Pravin Kumar Tulsyan, Advocate
For Respondent(s) : None
(Hon'ble Shri Justice Sanjay Kumar Jaiswal)
Order on Board
09/04/2025
1. This appeal has been preferred by the Insurance Company under
Section 173 of the Motor Vehicles Act, 1988 challenging the award
dated 28.02.2019 passed by 1st Additional Motor Accident Claims
Tribunal, Balod (C.G.) in Claim Case No.01/2013.
2. The facts necessary for disposal of this appeal, in brief, are that on
06.07.2011, when deceased Shailendra Kothari was going from
Balod to Dondilohara on Motorcycle bearing registration No. CG
07 LS 1782, near village Korguda due to a cow suddenly coming
from the front, he fell down and suffered grievous injuries. He was
immediately taken to the Primary Health Centre, Balod for
treatment, from where he was referred to the Hospital at Bhilai
where he died during treatment on 28.07.2011. The claimants who
are the parents of the deceased, filed a claim application under
section 163A of the Motor Vehicles Act against the owner and the
insurer of the motorcycle. The Tribunal after considering the
evidence bought on record awarded total compensation of
Rs.4,56,700/- with interest @ 10% per annum, from the date of
application till its realization in favour of the claimants, in which, the
Insurance Company has also 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. There is no representation on behalf of the respondents.
5. Heard learned counsel for the appellant and perused the record.
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, 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:
"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 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.
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 a cow suddenly came from the front and
the deceased fell down along with the motorcycle. The said
motorcycle was insured with the appellant. The insurance policy in
respect of the motorcycle has been brought on record marked as
Ex.D1. 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-cum-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 lakh. Since the vehicle was being driven by the
deceased himself 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 judgment, 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 otherwise, as per insurance policy Ex.D-1, the
insurance company will cover the risk of personal accident to the
owner-cum-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.4,56,700/- as warded by the Tribunal. 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/-
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai
