In a proceeding under Section 163-A of the Motor Vehicles Act, the insurer cannot raise any defense of negligence on the part of the victim to counter a claim for compensation.

JUDGMENT :

Vibha Kankanwadi, J.

Present appeal has been filed by original respondent No.2-the insurance company challenging the Judgment and Award passed in M.A.C.P. No.518/2011 by learned Chairman, Motor Accident Claims Tribunal, Aurangabad dated 31.03.2015, thereby the petition under Section 163-A of the Motor Vehicles Act, 1988 filed by the present respondent No.1 came to be allowed.

2. The original claimant had come with a case that one Prashant @ Gajanan Ashok Kadam was driving car bearing No.MH 20/BT-5515 towards Aurangabad. One Kashinath Darade was the regular driver of car, however, as he had chest pain, he was sleeping at the back seat of the car. Original respondent No.1 is the owner of said car, who is the father of Prashant @ Gajanan. When the car reached near spot at about 4.00 a.m. on 20.12.2010, due to the bright lights of the opposite vehicle Prashant could not see the road and the car gave dash to a rock, by the side of the road. Prashant died on the spot. Khultabad police had registered crime against him. The car was duly insured with respondent No.2 on the date of the accident. Petitioner is the mother of said deceased Prashant. Prashant was student of B.A. IInd year and aged 20 years. His yearly income was Rs.40,000/-, by way of contribution in the business to his father. Hence, compensation of Rs.4,00,000/- has been claimed together with interest.

3. Petition proceeded ex parte against respondent No.1. Respondent No.2 insurance company filed written statement and took objection regarding maintainability of the petition under Section 163-A of the Motor Vehicles Act. It was stated that the accident took place due to the negligence on the part of the Prashant. He was not holding valid and effective driving licence to drive the car, which was a transport vehicle. Prashant is the son of owner of the car and therefore, he cannot termed as "third party" and therefore, insurance company is not liable to pay compensation to the petitioner, as the risk of Prashant was not involved in the policy.

4. Taking into consideration the rival contentions, issues were framed. Petitioner has led evidence. Taking into consideration the evidence and other documents on record, the learned Trial Court held that the Prashant expired in the said accident. Petitioner being the mother of the deceased is entitled to get compensation under Section 163-A of the Motor Vehicles Act and therefore, compensation of Rs.4,40,000/- has been awarded together with interest. The said award is under challenge in this appeal.

5. Heard learned Advocate Mr. A.S. Deshpande for appellant and learned Advocate Mr. S.S. Chapalgaonkar holding for learned Advocate Mr. S.G. Chapalgaonkar for respondent No.1. Respondent No.2 though served failed to appear.

6. It has been vehemently submitted on behalf of the insurance company that the learned Trial Court failed to consider the fact that the accident had taken place due to the negligence on the part of the Prashant, who was the son of the owner of the vehicle, which was insured with respondent No.2. Due to the death of Prashant, who was in fact, in the shoes of his father, it cannot be stated that the mother of the deceased was entitled to get compensation. The learned Chairman failed to consider that the petition ought not to have been entertained under Section 163-A of the Motor Vehicles Act. Prashant cannot be termed as third party and therefore, the risk of Prashant was in fact not covered under the policy. He relied on the decision in New India Assurance Company Limited vs. Sadanand Mukhi and others, (2009) AIR SC 1788, wherein son of the injured while driving motorcycle met with the accident, resulting in his death. It was held that the insurance company is not liable to pay compensation.

Further reliance has been placed on the decision in Oriental Insurance Company Limited vs. Meena Variyal and others, (2007) AIR SC 1609(1), wherein it has been held -

"Section 163-A providing for payment of compensation notwithsta