IMPORTANT POINT
As a person cannot be both claimant and recipient, section 163-A would not be applicable in case where the owner of the vehicle is involved.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Respondent filed an application under Section 163-A of the Motor Vehicles Act, 1988 (the Act) claiming compensation for death of one Janak Raj (the deceased). He was riding on a motorcycle along with one Sukhdev Raj. Who was actually on the driver’s seat is not known. The motorcycle is said to have gone out of control resulting in the accident.

3. Appellant herein, having been issued notice, resisted the claim, inter alia, contending that although the owner of the vehicle deposited an extra amount of Rs.50 covering his personal insurance, the same would not cover the case of the pillion rider and in any event, the owner of the vehicle is not a third party within the meaning of Section 147 of the Act. The Motor Vehicles Accident Claims Tribunal, having regard to the pleadings of the parties, framed the following issues :

“1. Whether on 7.9.2004 at 4.05 pm Janak Raj had died in a road accident? OPP

2. Whether the Claimants are LRs and were dependant upon the deceased? OPP

3. Whether the claimants are entitled to compensation? If so, how much and from which of the respondents? OPP

4. Whether the motorcycle was being driven in contravention of terms and conditions of the insurance policy? OPR

5. Whether the driver of the motorcycle was not holding a valid and effective driving licence? OPR

6. Whether the claim petition is bad for non-joinder of necessary parties? OPR

7. Relief.”

4. The Tribunal noticed that the First Information Report (FIR) lodged at the Police Station in relation to the said accident was not clear to establish as to who was driving the motorcycle but despite the same proceeded to determine the question as to whether Janak Raj being himself the tort feasor, any application under Section 163-A of the Motor Vehicles Act was maintainable. The premise on which the Tribunal proceeded to determine the said issue was that a comprehensive insurance policy having been taken, the only question which arose for its consideration was as to whether the accident took place by reason of use of the motor vehicle irrespective of the fact as to whether the deceased or the said Sukhdev Raj was driving the motorcycle or not. It, however, held that if the deceased was the tort feasor, the question of reimbursement of any amount of compensation by the insurer would not arise, opining :

“If we presume that deceased had no comprehensive policy even then, claimants are entitled to compensation because evidence is silent as to who was driving the offending vehicle.”

5. On issue Nos.4, 5 and 6, the Tribunal held :

“Onus to prove all the issues was upon the Insurance Company. As discussed in the preceding issues, offending vehicle was insured but no evidence on the file as to who was driving the motor cycle. That is whether Janak Raj was driving the motorcyele or Sukhdev Raj Was driving the motorcycle. Janak Raj and Sukhdev Raj were on the motor cycle. Both received injuries in the accident. Sukhdevraj had succumbed to his injuries in the Civil Hospital, Dalhousie. Janak Raj was shifted to different hospitals. Ultimately, Janak Raj had also succumbed to his injuries. Motorcycle was owned by Janak Raj. Counsel for the company failed to convince how the petition is bad for non-joinder of necessary parties and what is the effect of non-production of driving licence when evidence is not clear as to who was driving the offending vehicle. So, all the issues are decided against the Insurance Company.”

6. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.

7. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount