JUDGMENT AND ORDER :

Rumi Kumari Phukan, J.

Heard Mr. A. Ahmed, learned counsel for the appellant and also Mr. B. Sarma, learned counsel for the respondent.

2. This appeal is directed against the judgment and order dated 19.11.2009 passed by the Motor Accident Claims Tribunal (FTC), Sonitpur at Tezpur in MAC Case No. 305/2006. By the impugned award, the learned Tribunal has awarded the compensation of Rs. 11,32,000/- to the claimant on the basis of the petition so preferred by the respondents under Section 166 of the MV Act.

3. As stated in the claim petition, the fact of the case is that on 30.4.2006 deceased while returning from his duty on a motor cycle bearing No. AS-C-8804 met with an accident due to the sudden appearance of the dog infront of him, he sustained injuries on his person wife of the deceased preferred claim as above. The vehicle in question was belong to one Rajib Das (respondent No. 2) and the said vehicle was duly insured with the Oriental Insurance Co. Ltd. In the proceeding before the Tribunal, the said respondent/owner of the vehicle filed his written statement (as OP No. 1) by taking as usual plea that the claimant has to proof the case in conformity with the provisions of MV Act and as the vehicle was duly insured at the relevant period with the Oriental Insurance Co. Ltd. So he has no any liability to pay compensation.

4. The appellant as O.P. No. 2 also resisted the claim of the claimant that they are not liable to pay any compensation as the death of said Dhaneswar Bora was not the result of any other vehicle. That apart all other usual pleas were taken by the Insurance Company. The learned Tribunal, however, awarded the claim of the respondent No. 1 in her favour as has been mentioned above.

5. The present appeal has been preferred by Insurance Company basically challenging the points as discussed below:

(i) It has been urged that the learned Tribunal has failed to appreciate the fact that the deceased himself (for own fault) caused the accident and no other vehicle was involved in the incident causing injury resulting death of the injured person.

(ii) The fact that for entertaining a claim petition under Section 166 MV Act, rash and negligent driving by the driver of the offending vehicle is sine-qua-non which is not present in the case and the said aspect is not considered by the learned Tribunal.

(iii) The deceased himself drive the vehicle borrowed from owner at the relevant time and he is not the third party and as such the adjudication of the claim by the Tribunal and awarding the compensation to the claimant is not sustainable.

(iv) The Tribunal has also committed grave illegality in not considering the fact that the policy did not cover the liability of the nature for which the additional premium has not been paid by the insured.

6. From the pleadings as well as evidence on record before the Tribunal, it is an admitted position that deceased Someswar Sarma, (who was a neighbour of the owner Rajib Das), drove the vehicle on the fateful day and while returning from duty he met the accident. In that view of the matter deceased Someswar was borrower of the vehicle. Having regard to the ground of appeal and the pleadings between the parties the relevant question before this Court as to whether borrower of a vehicle can claim compensation from the owner/insurer of the vehicle? This aspect of the matter dealt with by the Hon'ble Supreme Court in New India Assurance Company Ltd. v. Sadanand Mukhi & Ors. reported in (2009) 2 SCC 417, Oriental insurance Co. Ltd. v. Smt. Rajni Devi & Ors. reported in (2008) 5 SCC 736 and Nin Gamma & Ors. v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710. It has been held that borrower of a vehicle steps into the shoes of the owner and therefore he/his legal heirs are not entitled to claim compensation from the owner/insurer of the vehicle under Section 163 A of the Act. In Nin Gamma (supra) it was held as follows:

"In a case where third party is involved the liabil

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