IMPORTANT POINT
Compensation claims under Section 163A of the Motor Vehicles Act are not applicable when the deceased is the owner or a relative of the owner of the vehicle involved in the accident.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present appeal has been preferred by the claimant against the Judgment and Award dated 6th day of August, 2015 passed by the Learned Additional District Judge-cum-Judge, Motor Accident Claims Tribunal, 2nd Court, Balurghat, Dakshin Dinajpur (hereinafter called as the learned Tribunal Judge) in M.A.C. Case No. 168 of 2011, under Section 163A of the Motor Vehicles Act, 1988.

2. The Facts:-

“The victim boy Saiful Mondal @ Chhayful Mondal, since deceased, was the son of the present claimant/petitioner namely Samchhun Bibi and that at the time of the accident the victim was 20 years old and was a businessman and that on 11.10.2011 at about 18.30 hrs. the victim was coming from Gangarampur side towards his house riding a motor-cycle bearing No.W.B.-62B/4256 (Motor Cycle) and when he reached at Chalun, he lost his control over the Motor-cycle due to bad condition of the road and victim capsized on the road with his motor-cycle and due to said accident he got seriously injured and was removed to the Balurghat District Hospital but there the victim Saiful Mondal @ Chhayful Mondal died on the next day.”

3. O.P. No. 1, Najrul Islam Mondal (father of the victim) was the owner of the offending vehicle at the relevant time, which was insured under TATA AIG General Insurance Co. Ltd., the O.P. No. 2 in this case.

4. The owner of the offending vehicle bearing No. W.B-62B/4256 (Motor Cycle) has appeared in this case and filed W.O. but subsequently did not contest the case and as a result the instant case has been heard ex-parte against said owner of the vehicle (O.P. No.1).

5. The O.P. No. 2/TATA AIG General Insurance Co. Ltd. has contested this case and has filed written objection, wherein the said O.P. has denied all the materials allegations made by the claimant/petitioner in the instant case.

6. The claimant/appellant (mother of the victim) examined herself as P.W.1 and produced relevant documents being FIR, Seizure List, Final Report, Driving Licence, School Transfer Certificate, P.M. Report, Insurance Policy etc. which were marked Exhibit 1 to 12.

7. The Insurance Company/Respondent No.1 did not adduce any evidence.

8. The Tribunal finally passed the following order:-

“M.A.C. Case No. 168 of 2011

Dated: 06.08.2015

In Para-16 of the case of New India Assurance Co. Ltd. Vs. Sadanand Mukhi & Ors., [(2009) 2 Supreme Court cases 417] the Hon'ble Apex Court held that:-

“15. Keeping in view the aforementioned parliamentary object, let us consider the fact of the present case so as to consider as to whether the insurer is liable to pay the amount of compensation in relation to the accident occurred by use of the vehicle which was being driven by the son of the insured. We may, for the said purpose, notice certain decisions covering different categories of the claims. In United India Insurance Co. Ltd. V. Tilak Singh [(2006)4 SCC 404] this Court considered the provisions of the Motor Vehicles Act 1939 as also the 1988 Act and inter alia opined that the Insurance Company would have no liability towards the injuries suffered by the deceased who was a prelion rider, as the insurance policy was a statutory policy which did not cover the gratuitous passenger."

At Para-16 in said case the Hon'ble Supreme Court has further observed that:-

16. In Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263, it was held: (SCC p.265, Paras 10-11)

“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.

11. Liability of the insurer company is to the extent of Indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of prop