Point of Law: A claim u/s 140 of the Act may be made not merely as in terms of the award but it could be even at the time of the final disposal.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. R. Goswami, learned counsel appearing for the appellant/petitioner as well as Mrs. R. Devi, learned counsel appearing for the respondents.

2. This appeal has been preferred by the insurer of the vehicle AS23F/0682, Bajaj Allianz General Insurance Company Ltd against the award dated 30.07.2010 passed by the learned Member, MACT, Tinsukia in MAC Case No. 76/2007 wherein the appellant insurer has been made liable for compensation for the death of the borrower of the Motor cycle due to the injuries received by him while driving the vehicle.

3. The brief facts giving rise to the case is that on 13.05.2007 at about 11 PM while the deceased Safik @ Safik Ullah Ansari was proceeding from Hijuguri, Tinsukia towards his house at Philobari under Doom Dooma Police station by riding a motor cycle bearing no AS23F/0682 owned by his own brother, he met with an accident near Mansara, when the motor cycle got hit against the divider post of the railway line. The accident occurred as the road became slippery as it was raining. As a result of the said accident, Safik @ Safik Ullah Ansari sustained injuries on his person and he died on the spot. In this connection one U.D Case was registered vide Doom Dooma P.S. U.D. Case No. 44/07 dated 14.06.2007. It is stated in the claim petition that the claimants were solely dependent on the income of the deceased. It is an admitted fact that at the relevant time of accident the alleged vehicle was duly insured with the Bajaj Allianz General Insurance Company.

4. Learned counsel for the appellant contended that the deceased had borrowed the motor cycle AS23F/0682 from his brother, the respondent no 4 here in this appeal and while driving the same hit a divider post of a railway line and succumbed to his injury. The accident allegedly occurred due to slippery condition of the road. The aforesaid motor-cycle was insured by the appellant insurance company. The appellant filed written statement with a very specific pleading that since the vehicle was driven by the deceased himself, the deceased was not a third party and therefore the respondent/claimants are not entitled to any compensation. It was also pleaded that since the deceased had stepped into the shoes of the insured himself the petition is not maintainable as against the appellant insurance company. There was no allegation of rash and negligence against respondent no 4, the owner of the motor cycle in the claim petition though filed u/s 166 of Motor Vehicles Act 1988.

In support of his submissions learned counsel has placed reliance on the following case laws:

(i) Nimgamma vs. United India Insurance Company Ltd. AIR 2009 SC 3056

(ii) New India Assurance Company Ltd. vs. Sadanand Mukhi, AIR 2009 SC 1788

(iii) National Insurance Company Ltd. vs. Shyam Rai Mohanta, 2018 ACJ 2262

5. I have heard learned counsel for the appellant and perused the documents available on record.

6. From perusal of the case record, it reveals that the deceased was the son of the claimants no 1 and 2 and father of claimant no 3 who is the minor son of the deceased. From the claim petition it is seen that at the time of filing of MAC Case No. 76/2007 before the MACT, Tinsukia, the application was filed u/s 166 of MV Act, 1988 claiming compensations for the death of Safik @ Safik Ullah Ansari. But subsequently the word “under section 166” was striking out by putting Initial and date 29.11.2007 i.e. on the date of filing of the case. It is not reflected in the claim petition on which of the provision the application for claiming compensation was filed. In the MV Act, there are only two provisions for claiming compensation in case of death or injury caused by a motor vehicle i.e. u/s 166 or u/s 163 A. As it appears from the claim petition that the monthly income of the deceased was shown as Rs. 8000/- so annual income comes to Rs. 96,000/- . As such it transpires that the claimant filed the claim petition u/s 166 of MV Act as because if the case is fi