Claimants who are heirs of the vehicle owner cannot maintain a claim under Section 163A of the Motor Vehicles Act, 1988, and are limited to the insurance contract terms.

JUDGMENT AND ORDER :

DEVASHIS BARUAH, J.

Heard Ms. S. Roy, the learned counsel appearing on behalf of the appellant and Ms. M. Bora, the learned counsel appearing on behalf of the respondents.

2. This is an Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the Act of 1988’) challenging the judgment and award dated 10.06.2013 passed in MAC Case No.231/2009 whereby the learned Member, Motor Accident Claims Tribunal, Biswanath Chariali, Sonitpur had awarded an amount of Rs.3,94,000/- along with interest @ 6% per annum from the date of filing of the claim petition.

3. The ground of objection taken in the instant Memo of Appeal is that the present case would not be maintainable in terms with Section 163A of the Act of 1988, and as such, the learned Tribunal was not justified in awarding compensation.

4. Ms. S. Roy, the learned counsel appearing on behalf of the Appellant Insurance Company submitted that the deceased was the son of the owner of the vehicle, and as such, the deceased has stepped into the shoes of the owner at the time of the accident, and as such, the compensation which would have been payable at best would have been in terms with the contract of insurance entered into by the Appellant Insurance Company with the owner of the vehicle and nothing more.

5. In the backdrop of the above, let this Court now take up the facts which led to the filing of the instant proceedings. A Maruti car bearing registration No.AS-12-F-4096 was owned by one Santosh Upadhyaya. The said vehicle was insured with the Appellant Insurance Company. On 14.04.2009, when the son of the owner, one Rajib Upadhyaya (since deceased) was driving the said vehicle, he met with an accident and unfortunately he expired. It is under such circumstances, a claim proceedings was filed under Section 163A of the Act of 1988. The Appellant Insurance Company appeared and filed the written statement and took amongst others the plea that the offending vehicle was not driven properly and there was a breach of Section 149 of the Act of 1988, and as such, the Appellant Insurance Company was not liable for payment of compensation.

6. The learned Tribunal on the basis of the pleadings framed three issues which are reproduced herein under:-

(i) Whether the alleged accident occurred due to use of the offending vehicle in question?

(ii) Whether the claimant is entitled to get any compensation, if so, to what extent and from whom?

(iii) What relief/reliefs the claimant is entitled to get from the O.Ps. under the law and equity?

7. The learned Tribunal vide the impugned judgment and award dated 10.06.2013, awarded an amount of Rs.3,94,000/- along with interest @ 6% per annum.

8. This Court has perused the materials on record including the additional affidavit filed before this Court wherein at Annexure-B, the insurance policy has been enclosed. From a perusal of the said insurance policy, it is seen that there was a personal cover taken under Section 3 of the Act of 1988 for the owner/driver to the tune of Rs.2,00,000/-.

9. In the backdrop of the above, let this Court now consider the prevalent law in this regard. The Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi & Others, reported in (2008) 5 SCC 736 had duly dealt with the provisions of Section 163A of the Act of 1988 and observed that the liability under Section 163A of the Act of 1988 is on the owner of the vehicle as a person cannot be both a claimant as well as the recipient. The heirs of the owner could not have maintained a claim in terms with Section 163A of the Act of 1988. For that purpose only the terms of the contract of insurance could have been taken recourse to. This Court finds it relevant in this regard to take note of the paragraph No.7 of the said judgment which is reproduced herein under:-

“7. It is now a well-settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claim