The central legal point established in the judgment is that the liability of the insurer to pay compensation to the borrower of a vehicle depends upon the terms of the insurance policy and the concept of the borrower entering into the shoes of the owner.

JUDGMENT :

(The case has been heard through video conference)

[Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment dated 07.10.2015 made in M.C.O.P.No.57 of 2014 on the file of the Learned Motor Accidents Claims Tribunal Subordinate Judge, Perundurai.]

The unsuccessful claimants before the Motor Accident Claims Tribunal/Subordinate Judge, Perundurai are before this Court in the appeal filed under Section 173 of Motor Vehicles Act, 1988.

2. The short facts of the case is that, on 26.11.2013, at about 11.15 p.m, the deceased Vasudevan, who had a valid Driving License to ride motorcycle with gear, had taken the motorcycle bearing registration No.TN-33-AA-8051 owned by Thiru.Periyasamy, without his permission. He fell from the vehicle and sustained head injury and died on the spot due to shock and haemorrhage. The post-mortem report indicates the head injury has caused loss of his brain substance.

3. The Claim Petition filed under section 163-A of the Motor Vehicle Act, by his widow, minor daughter and mother was dismissed by the Tribunal as not maintainable. Stating that, the deceased is the borrower of the vehicle from its owner and as per the dictum of the Hon'ble Supreme Court laid in Ningamma vs. United India Insurance Company Limited reported in (2009 ACJ 2020 (SC), the deceased is neither a third party nor employee under the owner. As a borrower of the vehicle, he had entered into the shoes of the owner. So, the insured/owner is not vicariously liable to pay the borrower of his vehicle. The insurer is also not responsible to indemnify the owner, since there is no insurance coverage to the tort-feasor/borrower of the vehicle.

4. It is an admitted fact that the deceased fell down from the vehicle on his own while riding and died. No other motor vehicle was involved in the accident. Hence, petition is filed under Section 163-A of the Motor Vehicles Act, without attributing negligence. For the present, the law settled by the Hon'ble Supreme Court in Ningamma case cited supra is that, in case of borrower of the vehicle, he enters into the shoes of the owner and he is not a third party.

5. However, in Ram Khiladi & another vs. The United India Insurance Company & Another reported in 2020 (1) CTC 443, the Hon’ble Supreme Court while considering the dictum laid in Ningamma case in respect of claim petitions filed under 163-A of the Act, held that the liability of the insurer to pay the rider, who is the borrower of the vehicle depends upon the terms of policy and policy coverage. The Hon'ble Supreme Court noticing that insurer has collected premium for PA cover for owner/driver, held that, the premium collected from the owner/insurer under personal accident coverage will extend to the borrower of the vehicle who enters the shoes of the owner/insured.

6. For better understandings, the relevant passage of the Supreme Court Judgment in Ram Khiladi case is extracted below :-

“It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed here