The main legal point established in the judgment is that the liability of the insurance company under Section 163-A of the Motor Vehicle Act, 1988 is determined by the terms of the insurance policy, and in cases where the deceased can be treated as the owner of the vehicle, the insurance company is liable to pay compensation.

Rakesh Kumar Garg, J.

1. This is insurers appeal challenging the impugned award dated 25.7.2008 whereby compensation has been granted to respondent Nos. 1 and 2 on account of death of Pawan Kumar in a motor vehicular accident which occurred on 21.9.2005. The offending vehicle was duly insured with the appellant.

2. The grievance of the appellant before this court is that no liability could be fastened upon the appellant as deceased Pawan Kumar was not a third party and therefore, the claim petition which was filed under Section 163-A of the Motor Vehicle Act, 1988 against the appellant was not maintainable. According to the counsel for the appellant, Section 163-A of the Motor Vehicle Act, 1988 lays down that the owner of the motor vehicle or the authorized insurer shall be liable to pay compensation in case of death or permanent disability due to accident arising out of the use of motor vehicle as indicated in the second schedule to the legal heirs or the victims as the case made. Since there was no tort feaser, therefore, the appellant was not liable to pay any compensation. In support of his argument, learned counsel for the appellant has placed upon reliance in the case of (i) Dhanraj v. New India Assurance Co. Ltd., 2004(4) RCR(Civil) 786 : 2004 AIR SCW5438, (ii) Ningamma & Anr. v. United India Insurance Co. Ltd., 2009(3) RCR(Civil) 435 : 2009(2) AICl 128 : 2009(4) RAJ 164 (SC), and (iii) New India Assurance Co. Ltd. v. Sadanand Mukhi and others, 2009(1) RCR(Civil) 817 : 2009(1) RAJ 472 : 2009(1) AICJ 602 : 2009 A CJ 998 (SC).

3. I have heard learned counsel for the appellant.

4. There is no dispute with the proposition of law as canvassed by learned counsel for the appellant. However, a perusal of the impugned award would show that the insurance policy Ex.Rl was a comprehensive policy and the insurer had paid premium toward compulsory P.A. to owner-cum-driver of the offending vehicle. In view of the aforesaid fact, the argument raised by the learned counsel for the appellant is not sustainable.

5. In the Ningammas case (supra), the Honble Supreme Court of India held as under :-

"In the case of Oriental Insurance Company Ltd. v. Rajni Devi and others, 2008(4) RCR(Civil) 905 : 2008(6) RAJ 396 : . (2008)5 SCC 736, wherein one of us, namely, Honble Justice S.B. Sinha is 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 the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res Integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike."

6. It is also useful to refer to para 21 of the judgment of the Honble Apex Court in Ningammas case (supra), which reads as under :-

"21. Section 147 of the MVA provides that the policy of insurance could also cover cases again