The liability of the insurance company in cases where the driver steps into the shoes of the owner and the limitations under Section 147(1) of the Motor Vehicles Act.

This appeal by the claimant is directed against the award dated 29.06.2011 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in case No.T.S.(MAC) 511 of 2008 rejecting the claim petition on the ground that the claimant himself being the driver of the vehicle could not file a claim petition under Section 166 of the Motor Vehicles Act (M.V. Act).

2. There can be no manner of doubt that in a petition filed under Section 166 of the M.V. Act, negligence has to be proved. The accident may arise out of the use of the vehicle but that does not mean that there is negligence. In the present case, the claimant has only stated that he himself was driving the vehicle but while trying to save a cow, his vehicle went off the road. Therefore, there is no negligence of any other party and the claim petition is not maintainable.

3. The main issue which arises is whether a claim petition under Section 166 by the person who was driving the vehicle himself is maintainable under the Motor Vehicles Act when there is no negligence of any other party. Mr. H.K. Bhowmik, learned counsel for the petitioner, has placed reliance on the judgment of the Apex Court in Oriental Insurance Company Limited Vs. Rajni Devi and others : (2008) 5 SCC 736. In that case, the deceased was the owner of the vehicle. The Supreme Court held that there is no liability under the Motor Vehicles Act to cover the owner of the vehicle under Section 163A, but it found that in the policy in question, the insurance company had agreed to pay accident insurance to the owner to the extent of Rs.1,00,000/- and therefore, Rs.1,00,000/- was awarded as not under 163A, but as per the terms of the policy of insurance. In my view, this judgment does not help the petitioner at all.

4. The next judgment relied upon by Mr. Bhowmik is Ningamma & anr. Vs. United India Insurance Co. Ltd. : 2009 AIR SCW 4916. In the case before the Apex Court, the deceased was not the owner of the vehicle. He had borrowed the vehicle from the owner and was driving the vehicle. A claim petition was filed under Section 163A and the question which arose for decision by the Apex Court was whether any compensation was liable to be paid to the person, who had borrowed the vehicle from the owner. The Apex Court answered this question in the following terms:-

“18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble 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 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.”

5. The Apex Court clearly held that the deceased, who had bo