Mir Alfaz Ali, J.

This statutory appeal under section 173 of the MV Act is filed by the Insurance Co. against the judgment and order dated 31-3-2014 passed by MACT, Tezpur in MAC Case No. 120/2010.

2. The brief facts of the case were that on 18-9-2009 one Biswajit Baroi (since deceased) visited the house of his uncle, where the respondent No. 1, the owner of the vehicle bearing registration No. AS-12/D -2485 was also present. From the house of his uncle, the deceased Biswajit Baroi proceeded by riding the motorcycle of the respondent No. 1 for some works. While he was proceeding by riding the motorcycle, suddenly, a cow tried to cross the road and in order to save the cow, when he applied the break, the motorcycle capsized and consequently, he fell down. As a result of the accident, he sustained injury and died on the spot. The parents of the deceased filed an application praying for compensation and the learned tribunal by the impugned judgment, awarded a compensation of Rs. 4,45,000/- with interest @ 7.5% from the date of filing of the claim petition.

3. Aggrieved by the award, the Insurance Co. preferred the appeal.

4. Mr. K. K. Bhatta, learned counsel for the appellant and Mr. A. Ganguly, learned counsel for the respondent No. 3 were heard.

5. The counsel for the appellant/Insurance Co. submitted that there was no other vehicle involved in the instant case and the accident occurred due to fault of the deceased himself and as such, the parents of the deceased were not entitled to compensation. Further contention of the learned counsel for the Insurance Co. was that the deceased borrowed the vehicle from the owner/insured and therefore, he would stand in the shoes of the owner and as such, no claim for compensation could be maintained under section 163-A M.V. Act for death of the deceased who was not a third party.

6. Thus, the impugned award is challenged by the Insurance Co. on two counts, i.e., (i) accident took place due to fault of the deceased himself, as no other vehicle was involved, and as such, the owner/insurer were not liable to pay any compensation. (ii) deceased was not a third party inasmuch as, he borrowed the vehicle and thereby stepped into the shoes of the owner/insured, and as such, claim petition was not maintainable.

Point No. 1

7. Learned counsel for the respondent/claimant, Mr. Ganguly submitted that in a claim petition under section 163-A of the MV Act, the claimant is not under any obligation to plead or prove fault or negligence of the defendant. If the owner or the Insurance Co. seeks to avoid the liability, pleading fault on the part of the deceased, burden would lie with the owner or Insurance co. to prove such fault or act of rashness or negligence on the part of the deceased and in absence of such proof, the Insurance Co. cannot avoid the liability to satisfy the award under the policy. In support of his submission, learned counsel placed reliance on a decision of the Apex Court in National Insurance Co. Ltd. v. Sinitha and Ors., AIR 2012 SC 797.

8. The claim petition in the instant case was filed under section 163-A of the M.V. Act. The question, whether a claim under section 163-A is based on fault liability principle is no longer res-integra. The Apex Court, in National Insurance Co. Ltd. v. Sinitha and Ors., after having discussed extensively the distinction between claim under section 140 M.V. Act. based on no fault liability principle and claim under section 163-A, held, that a claim under section 163-A is based on fault liability principle. The Apex Court observed that "we have no hesitation in concluding that it is open to the owner or Insurance Company, as the case may be, to defeat a claim under section 163-A of the Act by pleading and establishing through cogent evidence a fault ground ('wrongful act' or 'neglect' or 'default'). It is therefore, doubtless that section 163-A of the Act is founded under the fault liability principle".

9. However, expressing doubt about the abo