JUDGMENT

V.M. Deshpande, J. (Oral) - The present appeal arises out of the judgment and award passed by the learned Member of Motor Accident Claims Tribunal, Nagpur, dated 19.12.2007 in Special Claim Petition No. 22/2006, whereby the learned Member of the Claims Tribunal partly allowed the petition under section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V.Act" for the sake of brevity) filed on behalf of respondent nos.1 and 2 and thereby directed the present appellant - Insurance Company and present respondent no.3 to pay Rs. 2,17,500/jointly and severally to the respondent nos.1, 2 and 4 herein along with future interest @ 7.5% per annum from the date of petition i.e. 22.3.2006 till its realization.

2. Few facts giving rise to the petition under Section 163A of the M.V. Act are enumerated herein under :

A] Respondent no.1 is widow, respondent no.2 is daughter and respondent no.4 is the mother of deceased Chatrapal.

B] On 08.1.2006, deceased Chatrapal was proceeding towards Nagpur along Kuhi -Wadoda road on motorcycle bearing registration No. MH31/ BM3491. Chatrapal was plying the vehicle. When the vehicle was at Ambadi shivar at about 4.00 pm, the motorcycle got jumped on a speed breaker resulting into losing control of Chatrapal and he fell down. He sustained severe multiple injuries to his head. He was taken to Kuhi hospital and after receiving the first aid, he was referred to Government Medical College and Hospital, Nagpur, however, due to the injuries he died on 18.1.2006. About the accident, an Accidental Death case No.03/2006 under section 174 of the Code of Criminal Procedure, 1973 was registered at Police Station, Kuhi

C] Respondent no.3 herein is the owner of motorcycle and it was duly insured with the appellant - Insurance Company. The deceased was aged about 45 years at the time of his death and was a mechanic. He was having his own repairing shop at Ajani Chowk, Nagpur and he was earning more than Rs. 3000/per month. Respondent nos.1 and 2 being the dependents on him, by filing petition they claimed compensation of Rs. 2,50,000/.

3. On being summoned, the owner of the motorcycle failed to attend the Court and as such the petition was proceeded exparte against him.

4. The appellant filed its written statement (Exh.15) and by filing the written statement the claim was contested. The appellant - Insurance Company contended in its written statement that the deceased was driving the motorcycle in most rash and negligent manner and was himself responsible for his accident. According to the written statement, deceased Chatrapal was neither the owner of the vehicle nor he was a third party and as such there was no coverage for him under the policy and therefore, claimed that the petition be dismissed.

5. Respondent no.1 - Smt. Vijaya, the widow, entered into the witness box. She proved various documents. On behalf of the Insurance Company, Smt. Sudha Maheshkar, an employee of the said Company entered into the witness box and she proved the Insurance Policy (Exh.33). The learned Member of the Claims Tribunal hold that the deceased was third party and therefore, his dependents were entitled to maintain the claim petition under Section 163A of the M.V.Act and granted compensation of Rs. 2,50,000/.

6. I have heard Shri B. Lahiri, the learned counsel for the appellant - Insurance Company and Shri S.S. Deshpande, the learned counsel for respondent nos.1 and 2.

7. The foremost submission of the learned counsel for the appellant - Insurance Company is that the petition under Section 163A of the M. V. Act at the behest of the widow and son of deceased Chatrapal was not maintainable at all, since he was not third party. He relied upon the following judgments to buttress the same point ;

1] 2008 (3) T.A.C. 263 (Bom.) HDFC Chubb General Insurance Co. Ltd. vs. Shantidevi Rajbalsingh Thakur and another

2] 2005 (1) T.A.C. 994 (Kant.) Appaji (since deceased) and another vs. M. Krishna and another and submitte