Point of Law: Accident claim - Insurance Company has no liability to indemnify the insured in a claim under Section 163A where the driver/rider stepped into the shoes of owner/insured and his status is not that of a 'third party'.

JUDGMENT :

This appeal emanates from award in O.P.(M.V) No.1279/2004 dated 30.01.2012 on the file of the Motor Accidents Claims Tribunal, Thrissur.

2. The appellant herein is the 2nd respondent before the Tribunal, the insurer. The respondents herein are the petitioner as well as the 1st respondent before the Tribunal.

3. One V.K.Suresh, who alleged to have sustained injuries in consequence of a motor accident occurred on 24.08.2003 at 11:40 p.m., while he was riding KL-8/X-6452 motor bike through Chiyyaram to Alumvettuvazhi road, approached the Tribunal and filed petition under Section 163A claiming compensation under the principles of no fault. According to him, while he was riding, an unidentified car hit against the motor bike and in consequence thereof, he sustained injuries. A claim of Rs.9,45,500/-was raised before the Tribunal.

4. The 1st respondent was declared ex-parte by the Tribunal.

5. The appellant, Insurance Company, filed written statement disputing the liability on the ground that the petitioner could not avail the benefit under Section 163A or 140 of the Motor Vehicles Act. Apart from that the quantum of compensation was disputed while admitting policy to cover the risk of 3rd parties, issued in the name of the insured. The Tribunal adjudicated the matter along with the connected O.P.(M.V) No.1329/2004 and finally granted award for Rs.1,32,000/-in favour of V.K.Suresh with interest thereof with direction to the appellant to pay the same.

6. The Insurance Company, the appellant herein, disputes the liability on the submission that the 1st respondent, the original petitioner who had ridden the motor cycle at the time of accident with the permission of the owner stepped into the shoes of the owner and thereby his status is that not of a 3rd party'. As such the Insurance Company has no liability to pay compensation under Section 147 of the Motor Vehicles Act to the original petitioner. It is submitted by the learned counsel for the appellant further that as early in the year 2009, the Honourable Apex Court considered this issue in the decision reported in Ningamma & Another v. United India Insurance Co. Ltd. : (2009) 13 SCC 710 and it was held that when the vehicle is used by persons authorised to do so by the owners, either expressly or impliedly, except in cases where the users are paid employees of the owners, they would step into the shoes of the owner and thereby they could not be categorised as third parties. It is submitted further by the learned counsel for the appellant that the ratio in Ningamma's case (supra) has been followed by this Court in the decisions reported in Sasikala v. Aji Kumar : 2019 (4) KLT 117 and Jiljet v. Stamphen George : 2019 (1) KLT 546.

7. Refuting this contention, the learned counsel for the 1st respondent, the original petitioner, submitted that no specific contention raised in the written statement categorising the 1st respondent as a person, who stepped into the shoes of the owner and as a person, who ridden the vehicle after borrowing the same from the owner. Therefore, the contention raised by the Insurance Company lacks support of pleadings and, therefore, the said contention cannot be appreciated. It is submitted by the learned counsel further that in the decision reported in National Insurance Company Limited v. Sinitha : 2011 (4) KLT 821 (SC), the Apex Court held that it is the duty of the Insurance Company to prove the relationship between the claimant and the owner of the motor cycle involved in the accident and the said aspect not established in this case and, therefore, the contention as canvassed by the learned counsel for the appellant cannot be countenanced. It is fairly conceded by the learned counsel further that though Sinitha's case (supra), was overruled by a larger bench of the Apex Court to hold that the Company cannot defeat claim under Section 163A by pleading and establishing negligence on the part of the petitioner, this position was not interfered.

8. While ap