Entitlement of compensation on the death or injury of borrowerof motorcycle under sec 163 A of MV act

 

ENTITLEMENT OF COMPENSATION ON THE DEATH OR INJURY OF BORROWER OF MOTORCYCLE UNDER SEC 163 A OF MV ACT.

Whether borrower of motorcycle is entitled to claim compensation for the death or injury sustained in a motor vehicle accident under sec 163 A of MV act.  The answer is no. He steps into the shes of owner of the vehicle. This aspect has been clearly discussed in 2020(1) TNMAC 1 (SC) Ramkhiladi and another VS United india insurance co ltd., and another

The brief facts of the case is as follows:

The deceased was travelling on motorcycle.  Even as per claimants, the accident occurred on account of rash and negligent driving of the driver of another motorcycle, the appellant filed a claim petition before MACT under sec 163-A of motor vehicles act. At this state it is worth to note that the claim petition was filed against the owner and insurance company of the motorcycle in which the deceased was travelling. Neither the driver nor the owner or the insurance company of the opponent vehicle were joined as opponents in the claim petition and no claim has been made against them. That was the objection raised by the respondent insurance company, insurer of the motorcycle in which the deceased was travelling, even though it is stated in FIR the driver of the opponent vehicle was rash and negligent and the claimants have not filed the claim petition against the owner of the said vehicle, the claim petition is required to be dismissed against the insurance company of the motorcycle in which the deceased was travelling.

Answering the issue whether accident was caused by driver of the motorcycle in which the deceased was travelling, the learned tribunal held that the death of the deceased had occurred from the motorcycle involved in the accident and said motorcycle was insured with respondent insurance company and is liable to pay compensation under sec 163 – A of the act.

Feeling aggrieved and dissatisfied with the judgment and award passed by the tribunal, the insurer of the motorcycle preferred an appeal before high court. The high court has allowed the said appeal and has quashed and set aside the judgment and award passed by the tribunal and has dismissed the claim petition on the ground that even as per FIR the accident occurred on account of rash and negligent driving of the opponent vehicle, the claimant have not filed claim petition against the owner of the said vehicle, and should have been filed against them

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court, claimants filed appeal before the apex court.

The learned advocate appearing for the claimants vehemently submitted that the high court erred in dismissing the claim petition solely on the ground that the claimants have not filed the claim petition against the owner of the opponent vehicle. He further stated that the claim petition preferred by the original claimants was under sec 163 A of the act and therefore when the claim is made under sec 163 A of the act, there is no need for the claimants to plead or establish that the death in respect of which the claim petition has been made was due to any wrongful act or neglect or default of owner of vehicle concerned.

It was further submitted that the claim petition filed by the claimants was based on the principle of no fault liability. It was submitted that the claimants could have elected to file the claim petition either under sec 166 read with sec 140 against the owner and insurer of offending vehicle on the basis of fault liability or under sec 163 - A  either against the owner and insurer of the vehicle in which the deceased was travelling or against the owner and insurer of the offending vehicle on the basis of no fault liability. The deceased was not the owner of the vehicle in which he was travelling and he was in employment of the owner of that vehicle and therefore a third party. It was submitted that being elected to prefer the claim under sec 163 A, of the act on the principle of no fault liability against the owner and insurer of the vehicle being driven by the deceased at the time of accident, the claim was perfectly just and maintainable.

He further submitted that sec 163 A of the act has to be interpreted in keeping with the intention of the legislature and the social prospective it seeks to achieve. It was submitted that in an application under sec 163 A of the act, fault of the owner of the vehicle need not be established. As the present claim premised on the no fault liability under sec 163-A of the act by the legal heirs of the deceased, the same  was maintainable against the owner and insurer of the motor vehicle, which was being driven by him, more particularly, when the deceased was not the owner of the vehicle and respondent NO4 is the registered owner, the insurance company cannot be absolved from its liability to pay the compensation.

The submissions given by the insurance company is as follows:

1.     That the deceased was not a third party with respect to the insured vehicle. He was third party with respect to the opponent motorcycle.

2.     When the claimant failed to claim compensation from owner of opponent vehicle, cannot be permitted as the driver of the motorcycle to claim compensation from owner of the vehicle in which he was travelling.

3.     That under the motor vehicles act, only the third party claims are payable.

4.     That in the present case, the deceased was not a third party and he had borrowed the vehicle from the registered owner.

It was submitted that the borrower of the vehicle steps into the shoes of the owner and therefore the borrower of the vehicle or his legal representatives are not entitled to claim compensation from insurer under the act. It was also submitted that the deceased in this case has stepped into the shoes of the owner and therefore not entitled to any third party compensation from the insured vehicle.

He further submitted that contract of insurance specifically provides that in case of personal accident the owner – cum driver is entitled to a sum of Rs.1 lakh. The deceased had stepped into the shoes of the owner, at the most may be entitled to sum of Rs.1 lakh only.

In view of the above and the reasons stated above, the appeal was partly allowed to the afore said extent and it is observed and held that the original claimants are entitled to a sum of Rs.1 lakh only with interest.