Liability of the insurance company under Section 163A of the Motor Vehicle Act, 1988 is determined by the principle of no fault liability and the terms and conditions of the insurance policy.

JUDGMENT :

1. This First Appeal is filed by the appellant – Insurance Company under Section 173 read with 163 A of the Motor Vehicle Act, 1988 challenging the judgment and award dated 16.03.2018 passed by the Motor Accident Claims Tribunal (Main), Dahod in M.A.C.P. No.816 of 2008, by which the Tribunal awarded compensation of Rs.2,44,508/- with interest @ 9% per annum from the date of filing of claim petition holding appellant and respondent no.10 jointly and severally liable.

2. It is the case of that on 09.10.2008, deceased Dilipsinh Sardarsinh Bhuria having borrowed motorcycle of respondent no.10, was driving the said motorcycle on 09.10.2008 and met with an accident as the said Motorcycle ran over a stone whereby it got slipped and the deceased sustained injuries and died.

3. The claimants, being heirs and legal representatives of the said deceased, filed claim petition under Section 163 (A) of the Motor Vehicles Act,1988 for seeking compensation of Rs.7,50,000/- against owner - opponent no.1 and Insurance Company – opponent no.2.

4. Learned advocate for the appellant has submitted that the deceased borrowed the vehicle – Motorcycle of the respondent no.10 – owner of the vehicle and thereby stepped into the shoes of the owner of the vehicle. Therefore, it is submitted that since the owner, not being third party, is not entitled to seek compensation, the deceased stepped into the shoes of owner of the vehicle is also not a third party and therefore, heirs of the said deceased are not entitled to seek compensation. He further submitted that there is neither statutory liability nor contractual liability on the part of the appellant since the deceased stepped into the shoes of the owner of the vehicle. Hence, it is submitted that the Tribunal ought not to have fastened liability on the appellant.

5. It is submitted by the learned advocate for the appellant that since the deceased himself was negligent in causing the accident, the claimants are not entitled for compensation for the wrong committed by the deceased. It is submitted that Tribunal erred in interpreting the Section 163 A and thereby, erred in law.

6. Learned advocate for the appellant has relied upon the decision of Hon'ble Supreme Court in the case of Ramkhiladi V/s. United India Insurance Company, 2020 (0) AIJEL-SC 65585 :(2020) (2) SCC 550, the Insurance Company is not liable to pay compensation. In paragraph no.5.5. and paragraph no.5.6 of the said decision, the Hon'ble Supreme Court held that in the claim case filed under Section 163 A of the M.V. Act by the heirs of the deceased (who was riding the vehicle as a borrower of the vehicle) against the owner and Insurance Company of the vehicle, the deceased would be in the shoes of the owner and hence, such a claim was not maintainable as the deceased cannot be said to be third party.

7. It is submitted that any amount paid under No fault liability to the claimants be refunded with interest to the appellant insurance company. However, if any amount of No fault liability is lying in Fixed Deposit, the Tribunal may be directed to refund the same with interest to the appellate Insurance Company.

8. Learned advocate Mr.Mohsin Hakim for the defendants no.1, 2, 3, 8 and 9 has submitted that the impugned award is passed by the Tribunal is just and proper. There is no need to modify the award and judgment.

9. The Tribunal has correctly placed reliance in the case of United India Insurance Company Limited V/s. Sunil Kumar & Anr. In Civil Appeal no.9694 of 2013 and held that in claim petition under Section163 A of the Motor Vehicle Act, it is open for the Insurance Company to raise any defence of negligence on the part of the victim. Moreover, looking to the insurance policy, more particularly the Schedule of premium, whereby the insurance company has received premium of Rs.300/- for Third Party basic and Rs.50/- towards “Compulsory PA to Owner-Driver”. So the Insurance Company has received premium towards the risk of driver and own