JUDGMENT :

Abdullah Gulamahmed Uraizee, J.

1. The appellant - Insurance Company has preferred present Appeal under Section 173 of the Motor Vehicles Act, 1988 ("M.V. Act" for short) to assail the judgment and award dated 17.09.2010 passed by the learned Chairman, Motor Accident Claims Tribunal, Vadodara, in MACP No. 1390 of 2008, wherein the appellant is directed to pay compensation to respondent Nos. 1 and 2 jointly and severally with respondent No. 3.

2. Facts in brief giving rise to present Appeal as could be covered from the impugned judgment and connected materials are that:

3. On 30.03.2008, Harshit Sureshbhai Doshi was riding motorcycle No. GJ-06-CN-8307 to go to Bhavnagar at his maternal uncle house. The motorcycle was of the ownership of respondent No. 3 herein. When he was passing by the Temple of Mohmai Mata, the motorcycle dashed with heap of stones due to darkness. As a consequence thereof, he suffered grievous injuries and died on the spot. The respondent Nos. 1 and 2, who happens to be his legal heirs and representatives being parents, filed an application under Section 163A of the MV Act. In MACT, Vadodara, to recover Rs. 4,84,500/- as compensation from the appellants and respondent No. 3 herein owner of the motorcycle. The Tribunal by impugned judgment and award partly allowed the claim petition and directed the Insurance Co. and respondent No. 3 herein to pay a sum of Rs. 3,30,900/- with 7.5% interest and proportionate costs jointly and severally to the claimants. The appellant Insurance Co. is not happy with fastening of the liability of the payment of the compensation, has preferred this appeal.

4. I have heard Ms. Aditi Raol, learned advocate with Mr. Shalin Metha, learned senior counsel for the appellant and Mr. Hiren Modi, learned advocate for the respondent Nos. 1 and 2. The respondent No. 3 is an ex parte.

5. Ms. Raol, learned advocate for the appellant has vehemently submitted that the deceased had borrowed the motorcycle from respondent No. 3 herein and accordingly, he had stepped in shoes of the owner. Relying upon the decision of the Hon'ble Supreme Court in the case of Ningamma and Another Vs. United Indian Insurance Company Ltd. reported in (2009) 13 Supreme Court Cases 710 and the decision dated 25.01.2011 of this Court rendered in First Appeal No. 3794 of 2010, she submitted that the application under Section 163-A of the M.V. Act was not competent as the deceased who had stepped into shoes of the owner as the owner cannot be recipient of the compensation as primary liability to pay the same is on him. She, therefore, urged that the appeal may be allowed and the impugned judgment and award may be quashed and set aside.

6. Mr. Hiren Modi, learned advocate for the claimants has supported the impugned judgment. He stoutly submitted that in view of the decision of the Hon'ble Supreme Court in the case of Shivaji and Anr. Vs. Divisional Manager, United India Insurance Co. Ltd. rendered in Civil Appeal No. 2816 of 2018 dated 09.08.2018, wherein relying upon the decision of Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr. reported in AIR 2071 SC 5710, it is held that in the proceedings under Section 163A of the Act, insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation. He further submitted that this Court has taken similar view in First Appeal No. 2680 of 2018 decided on 08.08.2018 and First Appeal No. 337 of 2007 decided on 01.03.2019.

7. Mr. Modi, learned advocate has relied upon the following decision of the other High Courts, wherein it is held that adjudication of the claim petition under Section 163A is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle (s) involved in the accident.

1. United India Insurance Co. Vs. S. Soundari CMA No. 2205 of 2015 in M.P. No. 1 of 2015 High Court of Madras.

2. Reliance General Insurance Co. Ltd. Vs. A. Mahendran CMA (MD