NAFR HIGH COURT OF CHHATTISGARH, BILASPUR M.A.(C) No.1080 of 2024

1. Kirti Vishvakarma W/o Late Late Purshottum Vishwakarma Aged About 31 Years R/o Village Bamhani, Thana And District Mahasamund Chhattisgarh.

2. Durgesh Vishvakarma S/o Late Purshottum Vishvakarma Aged About 9 Years minor through legal guardian mother Kriti Vishwakarama R/o Village Bamhani, Thana And District Mahasamund Chhattisgarh

3. Neha Vishvakarma D/o Late Purshottum Vishvakarma, Aged About 7 Years minor through legal guardian mother Kriti Vishwakarama R/o Village Bamhani, Thana And District Mahasamund Chhattisgarh

4. Shankun Bai Vishwakarama W/o Late Johan Vishvakarama, Aged About 60 Years R/o Village Bamhani, Thana And District Mahasamund Chhattisgarh ---- Appellants Versus

1. Harishankar Vishvakarma S/o Narad Vishvkarma Aged About 31 Years R/o Village Basin, Thana Fingeshwer, District Gariyaband (Chhattisgarh)

2. National Insurance Company Limited Through Divisional Manager, Divisional Office Number 01 Mobin Mahal, In Front Of Shahid Smarak Bhavan G.E. Road And District Raipur Chhattisgarh ---- Respondents For Appellants: Shri Arjun Lal Singroul, Advocate.

Single Bench: Hon'ble Shri Deepak Kumar Tiwari, J

Order On Board

11.07.2024

1. This Miscellaneous Appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) by the Appellants/Claimants against the award dated 22.03.2024 passed by the 12^th Motor Accident Claims Tribunal, (for short ‘the Tribunal’) Raipur, District Raipur in Claim Case No.696/2019 whereby, the claim Petition filed by them was dismissed on the ground that a person cannot be both claimant and also a recipient with respect to claim.

2. Shortly stated, the facts of the case are that deceased Purushottam Vishvakarama, who was the husband of Appellant No.1, father of Appellants No.2 & 3 and son of Appellant No.4, while riding a motorcycle, collided with the hoarding due to which, he suffered grievous injury resulting into death. A claim Petition has been preferred by the legal heirs of the deceased under Section 163A of the Act of 1988, which was dismissed by the impugned award. Hence this Appeal.

3. Learned Counsel for the Appellants submits that Respondent No.2-Insurance Company has issued a ‘package policy’ which covers the liability, therefore, the Tribunal has wrongly exonerated the Insurance Company and dismissed the claim Petition. He, therefore, prays to allow the Appeal with suitable compensation.

4. Heard learned Counsel for the Appellants and gone through the award impugned carefully.

5. From the facts of the case, it is explicit that the deceased himself was negligent and the claim was filed by his legal heirs. It is well settled that a person cannot be both a claimant and also a recipient with respect to a claim case. In this regard, it is necessary to peruse the provision of Section 163A of the Act of

1988, which is reproduced as under:-

“Special provisions as to payment of compensation on structured formula basis.—

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.”

6. In the case of Oriental Insurance Company Limited vs. Rajni Devi & Ors reported in (2008) 5 SCC 736, the Apex Court has held that the provision of Section 163-A of the Act of 1988 cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved.

7. In the case of Ningamma & Anr. vs. United India Insurance Company Limited reported in (2009) 13 SCC 710, relying upon the decision of Oriental Insurance Company Limited vs. Rajni Devi & Ors (supra), the Hon’ble Apex Court has held that Section 163-A of the Act of 1