A driver cannot be deemed a third party under Section 163-A of the MV Act when driving with the owner's instruction, thereby absolving the insurer of liability.

JUDGMENT :

1. Insurance company is in appeal before this Court for being made liable to pay compensation in Compensation Case No. 73 of 2005 for a sum of Rs. 2,92,500/- with simple interest at the rate of 6% per annum from the date of application under Section 163-A of the M.V. Act.

2. As per the case of the claimant, on 15.08.2005 under the instruction of the owner of the motorcycle TVS Victor No. JH-06-B-0336, deceased Krishna Sawaiyan @ Raju was using the vehicle for domestic purpose. When the vehicle reached near Tirilguttu bridge, it met with an accident due to bad road condition. As a result, the vehicle overturned and dashed against a roadside tree. The driver of the vehicle Krishna Sawaiyan @ Raju died in the accident.

3. Claim application was filed impleading insurer and owner of the motorcycle. Insurance of the vehicle was not disputed by the insurance company. Specific case of the insurance company before the Tribunal was that the policy of insurance covered third party and not the driver of it. Driver was not having a valid driving licence at the time of accident and the accident took place due to rash and negligent driving by the driver of the motorcycle, who died in the accident.

4. Learned Tribunal recorded a finding with respect to issue No. 7 regarding negligence of the deceased in causing the accident that the accident had taken place due to bad road condition and sudden appearance of a ditch resulting in the imbalance of the motorcycle.

5. It is submitted by learned counsel on behalf of the appellant that finding of the Tribunal regarding the accident having been caused due to bad road condition was against the weight of evidence. FIR in this case was filed by the pillion rider who is the cousin of the deceased and he has specifically stated in the FIR (Ext. 1) that the accident had taken place due to rash and negligent driving by the driver of the motorcycle.

6. Further, the police on investigation submitted the final form (Ext.2) in which a finding has been recorded that the accident has caused due to rash and negligent driving by the driver of the vehicle. The pillion rider who is the informant of the police case made a U-Turn in his deposition before the Tribunal and has attributed the bad road condition for the accident.

7. It is argued that when the accident was caused due to rash and negligent driving by the driver himself, the insurance company cannot be held liable even in an action brought under Section 163A of the M.V. Act, which is intended to defend a third party, and not when the deceased had stepped into the shoes of the owner by taking the vehicle and driving it.

8. Reliance is placed on 2022 SCC Online Kerela 4724 ( New India Assurance Company Vs. Rajeswari ) wherein on similar fact and situation it was held that when the vehicle is driven by the owner or one who has taken on hire, he cannot be regarded as a third party and therefore an action under Section 163A M.V. Act against the owner or the insurer of the vehicle is not maintainable.

9. Learned counsel on behalf of the claimant has defended the judgment of award of compensation. It is argued that under Section 163A M.V. Act, the intelligence of the deceased is not relevant in beyond the pale of consideration of the Tribunal. Reliance is placed on (2019) 12 SCC 398.

10. Having considered the submissions advanced on behalf of both the sides, the following undisputable facts emerged:

i) The deceased was driving the vehicle that is motor cycle on the instruction of the owner of the vehicle.

ii) The motor cycle was