The legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the Motor Vehicles Act.

JUDGMENT

Kalyan Rai Surana, J. - Heard Mr. S. Dutta, learned senior counsel assisted by Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents although notice was duly served.

2. By this appeal under section 173 of the Motor Vehicles Act, 1988, the appellant has assailed the judgment and award dated 16.09.2011 passed by the learned Member, MACT, Kamrup, Guwahati in MAC Case No.50/2007.

3. On 23.12.2005, the deceased Late Mahendra Sonowal, the predecessor-in-interest of the respondent nos.1, 2 and 3 was riding a motorcycle insured with the appellant bearing registration No. AS-23/D-6939, owned by his brother Ratan Sonowal and while proceeding towards Margherita, he met with an accident in which he had sustained grievous injuries and died on the spot. The respondent nos.1, 2 and 3 filed a claim petition and in the trial, the Accident Information Report issued by the Margherita P.S. was exhibited as Ext.1 and Postmortem Report was exhibited as Ext.2. The original driving licence of the deceased could not be exhibited, but the photocopy thereof was produced before the learned Tribunal as document no.1. The appellant examined the Insurance Investigator as D.W.1 and he had exhibited his report as Ext.1 and photograph of the place of accident as Ext.2.

4. The appellant had contested the claim petition by filing written statement denying the liability on the ground that the deceased victim was not covered by the policy of insurance. The owner of the vehicle did not contest the proceedings. The learned Tribunal framed the following two issues for trial, viz. (i) Whether victim, Mahendra Sonowal, dies as a result of the injuries sustained by him in the alleged road accident dated 23.12.2005 arising out of the use of the vehicle No. AS-23/D-6939? (ii) Whether the claimants are entitled to get any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?

5. The learned Tribunal had held in respect of issue no.1 that the deceased Mahendra Sonowal died in the accident which occurred on 23.12.2005 involving use of motorcycle referred above and the issue no.1 was decided in the affirmative. In respect of issue no.2, the learned Tribunal discarded the decision of the Supreme Court of India in the case of Ningamma & Anr. Vs. United India Insurance Co. Ltd., (2009) ACJ 2020 (SC) while arriving at a finding that the deceased was not the owner of the vehicle at the relevant time and held that there was no material to show that the deceased had borrowed the vehicle for his own purpose and the actual owner ceased to have control over it. In view of the provisions of section 163 A of the Motor Vehicles Act, it was held that compensation cannot be refused by the Tribunal even when the victim himself is responsible for the injury suffered by him or death of the victim. Therefore, by holding that the conditions of insurance policy was not found to be violated, the award of Rs.3,86,000/- (Rupees three lakh eighty six thousand only) was passed with interest @ 6% p.a. from the date of filing of the claim petition till payment.

6. The learned senior counsel for the appellant has submitted that the primary onus to prove the status of the deceased, who was riding the motorcycle must be on the claimant and it was the duty of the claimants to establish as to what was the status of the person, who was riding the vehicle, whether it was by way of borrowing, hiring or by unauthorizedly riding the vehicle and only after such evidence is tendered, the onus shifts on the appellant insurer to disprove the evidence. It is submitted that in this case, no FIR was lodged by the registered owner of the vehicle that the deceased was riding the motorcycle without his consent. Hence, it is submitted that the deceased could only be a borrower and not an unauthorized driver. It is also submitted that motorcycle is not a vehicle which can be driven by another on hire as it was