The main legal point established in the judgment is that in cases where the deceased was driving a motor vehicle borrowed from the owner and met with an accident without involving any other vehicle, the claimant may not be entitled to compensation under Section 163-A of the Motor Vehicles Act.

RUMI KUMARI PHUKAN, J.

1. Heard learned counsel for the appellant Mr. R Goswami. Also heard Mr. A R Sikdar, learned counsel for the respondents/claimants

2. The appeal is directed against the judgment and order dated 1.04.2014 passed by the Learned Member Motor Accident Claims Tribunal, Kamrup No. 2, in MAC Case No. 1207/2012.

3. Brief case of the claimant Ashima Gogoi (respondent No. 1 herein) is the mother of deceased Avoni Gogoi also the mother of respondent No. 2. On 27-10-2011 at about 11 AM when said Avoin Gogoi was driving a motorcycle No. AS-06-J-3699 proceeding towards Namrup from his house, then the vehicle met an accident on the road as a result of which he sustained grievous injuries on his person and although he was taken to hospital for treatment but he succumbed to his injuries as on 31.10.2011. The mother of the deceased Ashima Gogoi and brother of the deceased Montu Gogoi preferred the claim petition u/s 163A MV Act praying for compensation for the death of Avoni Gogoi in the Road Traffic Accident.

4. On the basis of the aforesaid claim petition, MAC Case No. 1207/2012 was registered and notice was issued to the owner, driver and insurer of the vehicle. The owner of the vehicle is the another son of the claimant and in his written statement he has admitted that his aforesaid vehicle belongs to him and said was driven by his brother Avoni Gogoi on the fateful day. It is contended that the vehicle was insured with the National Insurance Company so the Insurance Company is liable to pay the compensation. On the other hand, the Insurance Company raised the usual contention that they are not liable to pay any such compensation as the liability of the insurance is subject to compliance of the policy conditions and valid documents relating to the vehicle etc.

5. Upon the pleadings, the learned tribunal framed necessary issues and after examining the witnesses come to a decision that the deceased Avoni Gogoi died out of the injury sustained in the accident and by taking note of the age and income etc. concluded that the payment is entitled to a compensation of Rs. 3,41,000/- with 6 per cent interest from the date of filing of the petition till realization.

6. Challenging the aforesaid award, the present appeal has been preferred basically on the ground that the aforesaid award is bad in law inasmuch as the insurer is not liable to indemnify the owner/insured of the vehicle as in the present case deceased was driving the vehicle of the owner who is his own brother and the deceased was not a third party at the time of occurrence and as such there is no liability on the part of the Insurance Company u/s 147 of the MV Act. It is contended that the findings of the tribunal is contrary to the provisions of law relating to compensation from Motor Accident Victims.

7. The learned counsel for the appellant/National Insurance Company Ltd. Mr. Goswami has placed reliance on the judgment of the Hon'ble Apex Court New India Insurance Company Vs. Sadand Mukhi and Others., (2009) 2 SCC 417; Ningamma and another Vs. United India Insurance Company, (2009) 13 SCC 710 followed by National Insurance Company Vs. Shivani Das, 2015 2 TLR 450; Suchitra Choudhury (Dey) and Others. Vs. Naresh Debbarma and Others., 2015 1 TLR 459 and Oriental Insurance Company Vs. Anjana Sharma & Ors, (2016) 3 GauLR 537.

8. I have heard the submission of learned counsel for both the parties and gone to the impugned award and the LCR.

9. In the instant case, it is an admitted position that the deceased took the vehicle of his own brother for a driving and on the way he met with an accident of his own and there is no involvement of other vehicle. In the backdrop, it can be said that the deceased borrowed the vehicle from the owner and admittedly he is not a driver or employee under the owner. The vehicle was insured with the Insurance Company. The mother of the deceased preferred the claim petition by arraying her son/owner of the vehicle as party respondent No.