JUDGMENT

Pankaj Jain, J. - Insurer is in appeal impugning the award passed by the Motor Accident Claims Tribunal, Jhajjar (hereinafter referred to as 'the Tribunal') in MACT Case No.53 of 2012, dated 8th April, 2013.

2. Claim petition was filed under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the 1988 Act') seeking compensation on account of death of Sanjay, who was driving vehicle bearing registration No.DL-2CAA-5308.

3. As per the contents of the claim petition, on the night of 18th January, 2010 at about 9.30 p.m. Maruti Omni Car bearing RC No.DL- 2CAA-5308 driven by the deceased was hit by an unknown vehicle. Resultantly, driver Sanjay suffered multiple fractures. Offending vehicle ran away from the spot taking benefit of fog. Injured was taken to General Hospital, Bahadurgarh where he was declared brought dead.

4. The claim petition was filed by the legal heirs of the deceased- Sanjay. The owner of the vehicle as well as the insurer were impleaded as respondents. On the basis of the pleadings of the parties the Tribunal framed the following issues :-

"(i) Whether Sanjay son of Bhim Singh died in a motor vehicular accident which took place on 18.01.2010 (wrongly typed as 2001 in the Award) by the use of Maruti Omni Van bearing registration No.DL-2CAA-5308? OPP

(ii) If issue No.1 is proved, whether petitioners being the legal representatives of deceased Sanjay are entitled to the compensation for the death of Sanjay having occurred in the accident in question, if so, to what amount and from whom? OPP

(iii) Whether deceased Sanjay was not holding a valid & effective driving license at the time of accident, if so, its effect? OPR-2

(iv) Relief."

5. After analysing the evidence on record, Tribunal accepted the claim in part and awarded compensation of Rs.4,95,200/- holding respondents i.e. the insured and the insurer both liable jointly and severally.

6. Insurer is in appeal against the said award.

7. Primary contention raised by counsel for the appellant questions the maintainability of the petition. It has been contended that the deceased being driver/borrower of vehicle and not 'third party', the present petition under Section 163-A of the 1988 Act is not maintainable. Heavy reliance has been placed upon judgment passed by Apex Court in the case of Ningamma and another vs. United India Insurance Co. Ltd., 2009 (3) RCR (Civil) 435.

8. Ld. Counsel for the appellant further submits that the deceased was a borrower and, thus, the vehicle being used in violation of terms of the Insurance Policy, the appellant cannot be held to be liable. He further disputes the compensation awarded by the Tribunal.

9. I have heard Ld. Counsel for the appellant and have carefully gone through the records of the case.

10. Before deciding issue w.r.t. maintainability of the petition under Section 163-A of the 1988 Act in the present case, the status of the deceased needs to be decided first. It is trite that the insurer is required to plead and prove that the deceased was borrower of the vehicle. From the record, it is evident that the appellant has not led any evidence to prove that the deceased was borrower of the vehicle. Counsel for the appellant relies upon statement of Roopa (PW-1). A bare perusal thereof shall reveal that there is not even a suggestion put to her w.r.t. the deceased being borrower of the vehicle. Not only this, respondent No.6 i.e., owner Krishan Kumar appeared as RW-1. He was cross-examined by counsel for the appellant. No question or suggestion was put to him w.r.t. the deceased being borrower of the vehicle. Thus to say that the deceased was borrower of the vehicle and was using the same in breach of the policy cannot be accepted in the absence of any evidence on record. In view of categoric statement made by PW-1 and in absence of any cogent piece of evidence to rebut the same it is held that the deceased was only a driver of the vehicle.

11. Now the main issue that needs to be adjudicated in th