JUDGMENT :

Heard Ms S Roy, learned counsel for the appellant and Mr G Jalan, learned counsel for the respondent Nos. 1 and 2/claimants.

2. This appeal has been preferred by the Insurance Company, challenging the Judgment and Order dated 29.08.2006, passed by the learned Member, MACT, Kamrup and thereby awarding an amount of Rs. 2,74,000/-along with interest @ 6% per annum from the date of filing of the petition till realization, in MAC Case No. 141/2006.

3. The brief facts of the case is that on 30.11.2005, while the claimant’s son was riding a vehicle, bearing No AS-01E-5334 (Esteem) and on reaching near Darakohara under Kamalpur Police Station, the said vehicle met with an accident due to technical snag and as a result of which, dashed into a tree for which the son of the claimant sustained grievous injuries on his person and ultimately succumbed to his injuries at GMCH, Guwahati. After the accident one GD Entry vide. Kamalpur PS GDE No. 724, dated 30.11.2005, was registered on the same day. At the relevant time of accident, the alleged vehicle was duly insured with the National Insurance Company Limited.

4. Learned counsel for the appellant has argued that the claim petition is not maintainable under the Motor Vehicles Act, as on the fateful day of the accident the deceased was riding the offending vehicle and the accident occurred due to his negligence and as such, the impugned Judgment and Award is liable to be set aside.

5. It is also the submission of the learned counsel for the appellant that as per the provisions of the MV Act, in MACT cases, there are three necessary parties, i.e,. the claimant, insured and the insurer. In the instant case, the deceased has stepped into the shoes of the owner. Thus, deceased cannot be termed as a third party for the purpose of awarding the compensation under the Act.

6. Learned counsel further contended that the findings returned by the learned Tribunal are on incorrect appreciation of law enunciated by the Hon’ble SC in the case of Ningamma & Another –Vs-United India Insurance Company Limited; reported in (2009) 13 SCC 710. Thus, the learned counsel argued that as the claim petition was filed under Section 163(A) of the Act, it is primarily the liability of the owner to indemnify the claim.

7. On the other hand, the learned counsel for the respondents/ claimants has submitted that the claim petition was filed under Section 163(A) of the Motor Vehicles Act by the legal representatives of the deceased against the real owner of the vehicle, which was being driven by the deceased and Hon’ble Supreme Court has observed the since the deceased has stepped into the shoes of the owner of the vehicle, Section 163(A) of the Act cannot apply, wherein the owner of the vehicle himself is involved. It is also submitted that in the present case, the parties are governed by the contract of Insurance and under the contract of Insurance, the liability of the Insurance company will be third party only. However, at the same time, even as per the contract of insurance, in case of personal accident, the owner/driver is entitled to a sum of Rs. 1 lac.

In support of his submission, the learned counsel has placed reliance on a case law, Civil Appeal No. 9393/2019 (Ramkhilary & Another –Vs-United & Another)

8. I have considered the submissions of learned counsel for the parties and perused the record of MAC Case No. 141/2006 along with the documents available thereon.

9. It is not in dispute that at the relevant time of accident, Pradip Deka was the driver of the alleged vehicle, i.e., No AS-01E-5334 (Esteem) and he was not a paid driver. He borrowed the car from the registered owner. The claim petition was preferred by the legal representatives of the deceased against the owner and insurer of the offending car. As the deceased borrowed the car of the owner, he stepped into the shoes of the owner and, therefore cannot be the recipient of the compensation. The Insurance Policy is a contract of Insurance which only provi