IMPORTANT POINT
A borrower of a vehicle, in the event of an accident, steps into the shoes of the owner and cannot claim compensation as a third party under Section 163-A of the Motor Vehicles Act, 1988.

JUDGMENT :

(Parthivjyoti Saikia, J.) :

Heard Mr. R. Goswami, learned counsel representing the appellant as well as Mr. D. Mondal, learned counsel appearing for the Respondent Nos.1 & 2.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment dated 21.06.2011 passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in MAC Case No.94/2008.

3. On 12.08.2006, a 22 year old Uzzal Das was driving the motorcycle bearing Registration No.AS- 01-Y-3572. It met with an accident. As a result of which, the rider Uzzal Das died. The said motorcycle was owned by Gautam Roy Choudhury.

4. A claim application under Section 163-A of the Motor Vehicles Act, 1988 (for short, “the Act of 1988”) was filed before the Tribunal seeking compensation on account of the death of the deceased.

5. The appellant Insurance Company contested the claim petition by stating that the deceased was not a third party as because he had stepped into the shoes of the actual owner of the motorcycle.

6. The Tribunal did not accept the plea of the Insurance company and awarded compensation of Rs.2,54,000/- along with interest at the rate of 6% per annum from the date of filing of the claim petition.

7. Aggrieved by the aforesaid decision of the Tribunal, the present appeal has been filed.

8. Mr. Goswami has submitted that the deceased was not a third party and he had already stepped into the shows of the real owner. In order to buttress his point, Mr. Goswami has relied upon a decision of the Hon’ble Supreme Court that was delivered in Ningamma v. United India Insurance Co. Ltd., (2009) 13 SCC 710. The facts of the said case read as under:

“On 9-9-2000, the deceased was travelling on Hero Honda Motorcycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motorcycle was proceeding on Ilkal-Kustagl National Highway, a bullock cart proceeding ahead of the said motorcycle carrying iron sheet suddenly stopped and consequently deceased Ramappa who was proceeding on the said motorcycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Government Hospital, Ilkal, he died.”

9. In Ningamma (supra), the Supreme Court has held as under:

“19. In Oriental Insurance Co. Ltd. v. Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof.

20. It was held in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.

21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into t