Heirs of deceased borrower-driver cannot claim under Section 163A MV Act against owner/insurer of borrowed vehicle as deceased not third party but in owner's shoes; insurer liable only per personal accident policy cover of Rs.1,00,000/-.

Judgment :

Satyen Vaidya, J.

This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) against the award dated 5.6.2018, passed by the learned Motor Accident Claims Tribunal-I, Sirmour District at Nahan, H.P. (for short the Tribunal) in MAC Petition No. 252-MAC/2 of 2015, whereby compensation of Rs. 4,05,500/- along with interest at the rate of 7.5% per annum has been awarded in favour of respondents No. 1 to 4 herein (hereinafter referred to as the Claimants) on account of death of Sh. Ram Kumar.

2. On 26.11.2015, at about 11.15 PM deceased Ram Kumar while riding Motorcycle No. HP-17D-0682 met with an accident at Bata Pull Chowk, Paonta Sahib, District Sirmour, with respondent No.5 herein (hereinafter referred to as the Owner) of the motorcycle on the pillion.

3. Ram Kumar succumbed to the injuries suffered by him as a result of accident. The claimants being wife and children of Ram Kumar preferred claim petition under Section 163A of the Act before the learned Tribunal by impleading the owner and Reliance General Insurance Company Ltd. (hereinafter referred to as the Insurer) as party respondents. The cause of accident was attributed to failure of brakes of the motorcycle.

4. The owner in his reply to the claim petition admitted the occurrence of the accident involving Motorcycle No. HP-17D-0682. He also endorsed that the accident took place due to sudden failure of the brakes. The owner further disclosed the particulars of the insurer with whom the motorcycle was insured at the time of the accident.

5. The insurer filed its separate reply. Objections as to the maintainability of the petition were raised. It was contended that the deceased was not having valid and effective driving license to drive the motorcycle and the vehicle was being driven in violation of the terms and conditions of the policy. It was also alleged that the accident had taken place due to rash and negligent driving of deceased himself, who was alleged to be under influence of liquor.

6. The learned Tribunal had framed the following issues:-

“Issue No.1: Whether the petitioners are entitled for compensation on account of death of deceased Ram Kumar involving vehicle No. HP-17D-0682 at place Surajpur? OPP

Issue No.2: Whether the petitioners are entitled for compensation as claimed and from whom?

Issue No.3: Whether the petition is not maintainable as the deceased was driving the vehicle himself by borrowing the vehicle

from respondent No.1, the registered owner? OPR.

Issue No.4: Whether the petitioner was driving the vehicle without valid driving licence and in contravention of the terms and conditions of the insurance policy? OPR-2

Issue No.5: Whether the petition has been filed in collusion with petitioner and respondent No.1? OPR-2

Issue No. 6: Whether this petition is not maintainable as the deceased has sustained the injury on account of his own rash and negligent driving? OPR-2

Issue No. 7: Relief”.

7. Issues No. 1 and 2 were answered in affirmative, whereas all other issues were answered in negative. The claim petition was allowed and the claimants were held entitled to compensation to the tune of Rs. 4,05,500/-; the owner/insured was held liable to pay the compensation and insurer was held liable to indemnify the insured.

8. I have heard learned counsel for the parties and have also gone through the record carefully.

9. Mr. Jagdish Thakur, learned counsel for the appellant/insurer has laid challenge to impugned award on the ground that the petition under Section 163A of the Motor Vehicle Act, by the