IMPORTANT POINT
A borrower of a vehicle is not considered a third party under the insurance policy, and the insurance company's liability is limited to the terms of the contract.

JUDGMENT/ORDER

1. Heard learned Counsel for the parties.

2. By this appeal, the appellant - Insurance Company challenges the judgment and award dtd. 20/06/2008 passed by the Motor Accident Claims Tribunal, Gondia in Claim Petition No.115/2006 whereby the Tribunal awarded the compensation of Rs.3, 69, 500.00 with interest @ 7.5% per annum from the date of filing of the claim petition till realization of whole amount to the petitioners.

3. Brief facts in nutshell are as follows:

A] On 13/07/2006 the deceased Prashant Badwaik riding bike bearing No.MH-35-H-8091 near Marar Toli Railway Gate with due care and cautions. At the relevant time, while saving the bicycle rider, he applied sudden breaks, due to which the motorcycle of the deceased skidded and he sustained severe head injury. He was immediately admitted in KTS Hospital, Gondia and subsequently shifted to Orange City Hospital, Nagpur. During the course of treatment he succumbed to the death.

4. As per the contention of the claimants, the age of the deceased was 20 years and he was skilled Electronic Mechanic and was earning Rs.4000.00 per month. As the death of the deceased is caused in an accident, the motorcycle was owned by respondent No.2 and validly insured with respondent No.1, the claimants who are the parents are claiming compensation.

5. In response to the notice, respondent No.1 Insurance Company contested the claim on the ground that the alleged accident took place due to the rash and negligent act of the deceased himself. Deceased was not a third party. As per the contention of the Insurance Company as the deceased has borrowed the vehicle from the owner so he entered into the shoes of the owner, and therefore, the petitioners are not entitled for any compensation.

6. Respondent No.2 resisted the claim and denied the liability. Alternatively, it is contention of respondent No.2 that the vehicle is validly insured with the Insurance Company opponent No.1 hence, he is not liable to pay compensation.

7. Learned Member of the Tribunal having heard both the sides and the evidence recorded, by the judgment and award allowed the claim petition of the claimants and granted the compensation to the claimants.

8. Being aggrieved and dissatisfied with the judgment and award, present appeal is preferred by the appellant - Insurance Company on the ground that the deceased is not a third party since he stepped into the shoes of owner of the motorcycle i.e. respondent No.1. The deceased should not be included in the term of the victim. In view of Sec. 147 of the Motor Vehicles Act, 1988 the deceased is not included under the definition of any person but he was a tortfeasor, and therefore, the claimants are not entitled for compensation. It is further the contention of the Insurance Company that in view of the policy the limited liability of owner is covered. Therefore, Insurance Company is only liable to pay Rs.1, 00, 000.00.

9. Heard Shri T.T. Mirza, learned Counsel for the Insurance Company and Shri R.M. Pande, learned Counsel for respondent No.2. None appears for respondent No.3.

10. Shri T.T. Mirza, learned Counsel for the appellant submitted that the deceased died in a motorcycle accident as the motorcycle was slipped. The said motorcycle was owned by the original respondent No.2. The deceased sustained severe bodily injuries and died during treatment. Inasmuch as the alleged accident took place due to the negligent act of the deceased himself as the motorcycle was slipped and turn turtle, therefore, the appellant - Insurance Company is not liable to pay compensation to the claimants. The appellant - Insurance Company is to be exonerated from the liability. Since the deceased stepped into shoes of the owner of the motorcycle i.e. respondent No.2. As he was riding the motorcycle, he is not the third party, and therefore, the appellant - Insurance Company is not liable to pay compensation.

11. In support of his contention he placed reliance on the following judgments:

(i) New India Ass