A victim identified as a permissive user may claim compensation under the insurance policy terms even if classified as a tortfeasor under the Motor Vehicles Act.

JUDGMENT

The claimants are the appellants herein. It was an unfortunate fatal accident that took place on 03.10.2017 at around 7.30 p.m., when the deceased was riding his motorcylce from Veesarediyur to Chinnatirupathi, he was forced to negotiate a dog that jumped on the line of the motion of the motorcycle suddenly. The motorcycle belonged to the first respondent (who chose to remain exparte before the Tribunal), and the victim was his employee who used the vehicle at that relevant time for his employer's purposes.

2. Seeking compensation, the dependants of the victim moved the MACT with MCOP.No.290 of 2018 under Section 163-A of the Motor Vehicles Act, 1988. The Tribunal dismissed the claim essentially on the ground that since the victim himself was the tortfeasor, his dependants cannot maintain a claim for compensation. Aggrieved by the same, the dependants are before the Court.

3.1 The learned counsel for the appellants submitted the following :

(a)The Tribunal was wrong in branding the victim as a tortfeasor.

The manner of accident indicates that it is an inevitable accident and therefore, no negligence can be attributed to him;

(b)Before the Tribunal, the insurance company took up a plea inter alia that it is not liable, because there is no insurance cover.

3.2 Developing his arguments, the learned counsel submitted that the insurance company had produced Ext.R1, insurance policy. This policy is not a Act Policy, but is titled as 'two-wheeler package policy'. Section II thereof (page 2 &3 of the policy) deals with 'liability to third parties'. Clause 3 (in Section II) provides that the insurance company "will indemnify any driver who is driving the vehicle on the insured's order or with insured's permission provided that such driver shall as though he/she was the insured observe fulfil and be subject to the terms, exceptions and conditions of this policy in so far as they apply." Inasmuch as the insurance company by contract has included the user of the vehicle with the permission of its owner within the net of third party, necessarily the victim of the accident involved in this case should be treated as a third party.

3.3 Summing up his arguments, the learned counsel submitted that the nature of the accident being an inevitable accident and had occasioned not due to the negligence of the victim, and since he being a third party by virtue of the aforesaid terms of the insurance policy, the claimants are entitled to compensation under Sec.163-A of the Act.

4. Placing reliance on the dictum in Ramkhiladi and another Vs United India Insurance Company and another [(2020) 2 SCC 550], where the Hon'ble Supreme Court has held that he who wants to claim compensation under Sec.163-A of the M.V.Act, such person or their dependants must be a third party, and not the owner or the user of the vehicle, the learned counsel for the respondent argued that inasmuch as the victim of the accident is only a user of the motorcycle, he cannot be considered as a third party within the meaning of Sec.163A of the Act. Relying on the ratio in United India Insurance Company Limited Vs Sunil Kumar and another [(2019) 12 SCC 398], the learned counsel submitted that only when the claimants are either a third party or dependants of a third party within the meaning of Sec.147 of the M.V.Act, a claim under Sec.163-A of the Act can be sustained and the insurer would be under an obligation to pay the compensation. So far as the present case is concerned, the victim was a rider of the motorcycle, and the nature of policy only covers P.A cover for the owner, and not for the borrower of the vehicle. Hence, the claimants would neither be entitled