The deceased, riding the motorcycle owned by a claimant, cannot claim compensation as a third party under Section 163-A of the Motor Vehicles Act, limiting the insurance company's liability to Rs. 1,00,000.

ORDER :

With the consent of parties, the matter is finally heard at motion stage.

2. This order shall govern disposal of M.A. No.3057/2008 (IFFCO-TOKYO General Insurance Co. Ltd. Vs. Dhanpat Kewat and others) and M.A. No. 3438/2008 (Dhanpat Kewat and others Vs Smt. Sumitra Bai and another) arising out of award dated 26.04.2008 passed by Chairman Motor Accidents Claims Tribunal, Katni in MVC No. 61/2007.

3. MA No.3057/2008 has been filed on behalf of appellant/insurance company seeking setting aside the impugned award/exoneration from liability to pay compensation, whereas MA No. 3438/2008 has been filed on behalf of the claimants seeking enhancement of compensation.

4. Learned counsel for the appellant/insurance company, in MA No. 3057/2008, submits that at the time of accident, deceased was himself riding motorcycle and accident occurred as motorcycle got slipped. Owner of the above motorcycle was husband of non-applicant No.1. Present claim petition has been filed under Section 163-A of Motor Vehicle Act and above provision covers cases wherein maximum annual income is Rs. 40,000/-. In the instant case, claimants have mentioned in claim petition that deceased was earning Rs. 4,500 per month. Therefore claim petition under Section 163-A of Motor Vehicle Act is not maintainable.

5. It is also urged that tribunal in para 14 has held that deceased is a third party. Learned counsel for the appellant, after referring and relying upon Ramkhiladi Vs. United India Insurance Company, (2020) 2 SCC 550, Bhagyalakshmi and others Vs. United Insurance Company Ltd and another, (2009) 7 SCC 148, Oriental Insurance Com. Ltd. Vs. Rajni Devi and others, (2008)5 SCC 736 and Ningamma and another Vs. United India Insurance Co. Ltd., 2009 ACJ 2020(SC), submits that in view of above, deceased cannot be treated as third party and he will step into the shoes of owner of offending vehicle. Therefore, legal heirs of deceased are not entitled to claim compensation and claim petition is not maintainable. It is also so because in the instant accident, no other vehicle is involved.

6. Learned counsel for the appellant also submits that at the most, in view of premium paid under the policy, legal heirs are entitled to receive maximum Rs. 1,00,000/- from appellant/insurance company and liability of insurance company is limited to that extent. It is also urged that legal issue can be raised at any stage. On above grounds, it is urged that appeal filed by the insurance company be allowed and impugned award be set aside/insurance company be exonerated from liability to pay compensation and appeal filed by the claimants be dismissed.

7. Learned counsel for the appellants/claimants in MA No. 3438/2008 submits that in the instant case, respondent/insurance company has not taken any objection in his written statement that as deceased’s income was mentioned Rs. 4500/- per month in the claim petition, therefore, deceased’s annual income being more than Rs. 40,000/-, claim petition under Section 163-A of Motor Vehicle Act is not maintainable. Further, No issue was framed with respect to above. It is also urged that whatever income might have been pleaded in claim petition, it is for the tribunal to determine deceased’s income. Hence, on above ground claim petition filed by the claimants cannot be dismissed.

8. Learned counsel for the claimants also submits that relationship between deceased and owner of offending vehicle requires to be established by insurance company. Deceased was neither insured nor insurer. Therefore, he would come within the definition of third party. Hence, liability of insurance company cannot be limited to that of Rs. 1,00,000/-. It is also urged that multiplier is to be applied on the basis of age of deceased and not on the basis of age of parents of deceased. It is also urged that compensation awarded by the tribunal under other heads is also on lower side. Therefore, compensation awarded by the tribunal be suitably enhanced. With respect to above sub