JUDGMENT :

The appellant-Insurance Company has challenged the judgment and award dated 19.12.2008 passed in MVC.No.9021/2007 whereby the liability was fastened on the insurer jointly and severally along with the owner and whereby the claim was required to be satisfied by the insurer.

2. The parties are referred to as per their ranking before the Tribunal.

3. The facts leading to the claim petition are that the deceased Rajesh @ Agalecha met with a road traffic accident that took place on 6.3.2005 when the deceased was riding a motor cycle bearing No.KA-11-J-7005, proceeding towards Bellur from Bellur Cross on Tumakuru-Mysuru Road, when a Bajaj Chetak Scooter bearing No.KA-27-H-1845 allegedly being driven in a rash and negligent manner collided with Rajesh’s motorcycle. Rajesh suffered grievous injuries and later succumbed to the same and died. Claim petition came to be filed by the mother of the deceased Rajesh under Section 163-A of the Motor Vehicles Act, 1988 (‘the Act’ for brevity) seeking for compensation and in the said petition, the insurer was arrayed as respondent No.2, while the father was arrayed as respondent No.1. It is relevant to note that the deceased Rajesh was driving the vehicle which belonged to his father.

4. Upon notice of the claim petition, the insurer filed its statement of objections contending that in fact the deceased Rajesh was riding the motorcycle in a rash and negligent manner and a charge sheet had been filed against the deceased, that the claim was not sustainable in the absence of arraying the owner and insurer of Bajaj Chetak Scooter which had collided with the motorcycle of deceased Rajesh, that there was suppression of facts, the claim had been lodged colluding with the respondent No.1, and that claim petition under Section 163-A of the Act was not maintainable. The Tribunal allowed the claim petition in part while awarding a compensation of Rs.4,52,500/- to be payable with costs and simple interest of 6% per annum from the date of petition and providing that the award was to be satisfied by the insurer (respondent No.2) and respondent No.1 jointly and severally.

5. The insurer, aggrieved by the judgment and award of the Tribunal, has filed the appeal and reiterates in the grounds of appeal the same contentions raised in the statement of objections filed opposing the claim petition before the Tribunal. The arguments on behalf of the insurer have been advanced by learned Counsel Sri R. Rajagopalan.

The Insurer who is the appellant contends as follows :-

(i) Where two vehicles are involved in an accident, the insurer and the owner of other vehicle also ought to have been made as a party; that all the tortfeasors ought to have been impleaded by the claimant; that the burden was on the family of the deceased and the deceased himself as to under what circumstances vehicle was borrowed and these facts and clarifications ought to be placed by the family of the deceased;

(ii) As the vehicle belonged to the father, the deceased who is the son steps into the shoes of the owner of the vehicle and accordingly, no claim could be sustained as against the insurer by the owner himself under Section 163-A of the Act;

(iii) That there was negligence on the part of the rider of vehicle and as the son was riding the motor cycle in a rash and negligent manner, no claim would lie against the insurer for the negligence of a person claiming under the owner;

(iv) That Section 163-A of the Act would permit the claims being made by a third party and in the present case, the claim on behalf of the deceased, who is the son of the owner cannot be described to be a claim by a third party.

6. The respondents, who were the claimants were represented by learned counsel, Sri A.K. Bhat appearing on behalf of Sri N.S. Bhat and has advanced the following contentions :-

(i) Section 163-A(2) of the Act dispenses with the requirement to prove negligence.

(ii) The burden of proof as regards the assertion that the deceased (son) stepped into th