A person who borrowed a vehicle from the registered owner and met with an accident is not entitled to claim compensation under Section 163-A of the Motor Vehicles Act.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree dated 27.08.2014, made in M.C.O.P.No.2224 of 2011, on the file of Motor Accident Claims Tribunal, Chief Court of Small Causes, Chennai.)

1. The Civil Miscellaneous Appeal is filed against the judgment and decree dated 27.08.2014 passed in M.C.O.P.No.2224 of 2011.

2. The accident occurred on 29.03.2010 at about 17.00 hours at Poonamallee High Road, opposite to Maduravoyil Police Station. When the deceased was riding the first respondent's/third respondent herein motor cycle bearing Registration No.TN 09 BA 8119 at Poonamallee High Road, opposite to Maduravoyil Police Station, at that time, an unknown School Van came from behind in a rash and negligent manner hit the motor cycle of the deceased thereby the deceased sustained grievous injuries. On account of the fatal and multiple injuries all over the body, the deceased died after admittance in the hospital.

3. The learned counsel appearing on behalf of the appellant mainly raised a question regarding the maintainability of the claim petition under Section 163-A of the Motor Vehicles Act. Perusal of the claim petition itself reveals that the accident occurred in respect of the unknown vehicle and further the deceased was not a owner and he has borrowed the vehicle from the third respondent herein, who is the owner of the vehicle. Thus the deceased stepped into the shoes of the owner of the vehicle and therefore, there is no coverage of policy. Thus the claim petition under Section 163-A of the Motor Vehicles Act is not maintainable.

4. The counter filed by the appellant-Insurance Company reveals that the case on hand is hit and run. Even according to the claimants at the relevant point of time, the deceased Duraipandian was riding the motor cycle bearing Registration No.TN-09-BA-8119 through Poonamallee High Road opposite to Madhuravoyal Police Station and at that time an unknown School Van, which was driven by its driver rashly and negligently dashed against the motor cycle in which the deceased was riding. In result, the deceased suffered fatal injuries and died in the hospital. Thus the accident was caused by an unknown van, therefore, the claimants are not entitled to claim any compensation either under Section 163-A of the Motor Vehicles Act or under any other provision.

5. Though the ground has been raised as a defence in the counter statement filed by the appellant, the Tribunal has failed to adjudicate the maintainability of the claim petition, contrarily, the Tribunal proceeded based on the coverage of policy as well as the quantum of compensation. Thus, there is no adjudication with respect to the maintainability of the claim petition under Section 163-A of the Act. However, the averments in the counter filed by the Insurance Company is recorded by the Trial Court in the Judgment. Thus, this Court is of the considered opinion that the Tribunal has committed an error by not considering the maintainability of the claim petition as preliminary issue.

6. In this regard, the learned counsel appearing on behalf of the appellant cited the judgment of the Hon'ble Supreme Court of India in the case of Ningamma and Another vs. United India Insurance Co. Ltd. 2009 ACJ 2020, wherein in paragraphs 18 and 19, it has been held as under:-

“18. In the case of Oriental Insurance Co. Ltd. vs. 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. It was held in Ori