Judgment & Order:

1. Heard Ms. R. D. Mozumdar, the learned counsel for the appellant. Heard Ms. R. D. Mozumdar, the learned counsel for the appellant. Also heard Mr. K. Kalita,Also heard Mr. K. Kalita, the learned counsel for the respondent No. the learned counsel for the respondent No. 1.1.

2. This appeal under Section 173 of the Motor Vehicle Act, 1988 has This appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the National Insurance Company Limited, been preferred by the National Insurance Company Limited, impugning the judgment and award dated 19.12.2013, passed by impugning the judgment and award dated 19.12.2013, passed by the Motor Accident Claims the Motor Accident Claims Tribunal No.Tribunal No. 2, Kamrup,2, Kamrup, GuwahatiGuwahati in in MAC Case No. 1126/2011, whereby the appellant was directed to MAC Case No. 1126/2011, whereby the appellant was directed to pay a compensation amount of Rs. 6,67,000/pay a compensation amount of Rs. 6,67,000/-- to the claimants.to the claimants.

3. The facts relevant for consideration of the instant appeal, in brief, The facts relevant for consideration of the instant appeal, in brief, are that the respondare that the respondentsents Nos. 1, 2, 3 and 4 have filed an Nos. 1, 2, 3 and 4 have filed an application under Section 163application under Section 163 A of the Motor Vehicles Act, 1988 A of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal No. 2, Kamrup, before the Motor Accident Claims Tribunal No. 2, Kamrup, Guwahati, seeking compensation on account of death of Moinul Ali, Guwahati, seeking compensation on account of death of Moinul Ali, who was the husband of the respondenwho was the husband of the respondent No. 1 and father of other t No. 1 and father of other claimants.claimants.

4. The death of said Moinul Ali occurred in an accident, involving The death of said Moinul Ali occurred in an accident, involving Motorcycle bearing Engine No. JA06EEBGA06885 and Chassis No. Motorcycle bearing Engine No. JA06EEBGA06885 and Chassis No. MBLJA06EVBA05866.MBLJA06EVBA05866. It is contended in the claim petition by the It is contended in the claim petition by the claimants before the Motor Acclaimants before the Motor Accident Claims Tribunal that on the cident Claims Tribunal that on the fateful day, i.e., on 06.02.2011, the deceased Moinul Ali was fateful day, i.e., on 06.02.2011, the deceased Moinul Ali was proceeding from Tamulpur on the proceeding from Tamulpur on the aboveabove--mentionedmentioned motorcycle motorcycle towards Bahbari and on his way when he reached Kumarikata, he towards Bahbari and on his way when he reached Kumarikata, he met with an accident due to mechanicalmet with an accident due to mechanical defect of the motorcycle. defect of the motorcycle. As a result of said accident, the said Moinul Ali sustained grievous As a result of said accident, the said Moinul Ali sustained grievous injuries on his person and he was thereafter, shifted to hospital, injuries on his person and he was thereafter, shifted to hospital, however, later on he succumbed to his injuries.however, later on he succumbed to his injuries.

5. The application under Section 163The application under Section 163 A of the MoA of the Motor Vehicles Act, tor Vehicles Act, 1988 filed by the respondent1988 filed by the respondentss/claimants was registered as MAC /claimants was registered as MAC Case No. 1126/2011.Case No. 1126/2011. The The present appellant contested the claim of present appellant contested the claim of the respondents by filing written statement wherein it took various the respondents by filing written statement wherein it took various defences and defences and pleadedpleaded that the Insurance Comthat the Insurance Company is not liable to pany is not liable to pay any compensation to the claimants.pay any compensation to the claimants.

6. On the basis of the pleadings of the parties, the Motor Accident On the basis of the pleadings of the parties, the Motor Accident Claims Claims Tribunal hasTribunal has framed the following issues:framed the following issues:

                   i. Whether the victim Mainul AlWhether the victim Mainul Alii died as a result of injuries died as a result of injuries sustained by him in the alleged road accident dated 06sustained by him in the alleged road accident dated 06--0202--2011 involving vehicle2011 involving vehicle bearingbearing No. ENGINE No. ENGINE NO.JA06EEBGA06885, CHASSIS NO. NO.JA06EEBGA06885, CHASSIS NO. MBLJA06EVBA05866 (Motorcycle), and whether the MBLJA06EVBA05866 (Motorcycle), and whether the said accident took place due to use and involvemsaid accident took place due to use and involvement of ent of the said the said vehicle?vehicle?

                   ii. Whether the claimants are entitled to receive any coWhether the claimants are entitled to receive any com-m-pensation and if yes, to what extent and by whom pensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amongst the opposite parties, the said compensation amount will be amount will be payable?payable?

7. During the course of inquiry, the claimant side exaDuring the course of inquiry, the claimant side examined one mined one witness and exhibited certain documents, though, the contesting witness and exhibited certain documents, though, the contesting opposite party Insurance Company crossopposite party Insurance Company cross--examined the claimantexamined the claimant’s’s witness, however, witness, however, itit did not adduce any evidence on its own.did not adduce any evidence on its own.

8. Ultimately, after completion of the inquiry, the claimantsUltimately, after completion of the inquiry, the claimants were were awarded the compensation amount of Rs.6,67,000/awarded the compensation amount of Rs.6,67,000/-- by the by the judgment and award dated 19.12.2013, which has been impugned judgment and award dated 19.12.2013, which has been impugned in this appeal.in this appeal.

9. Ms. R. D. Mozumdar, the learned counsel for the appellant has Ms. R. D. Mozumdar, the learned counsel for the appellant has submitted that the Motor Accident Claims Tribunal had esubmitted that the Motor Accident Claims Tribunal had erred in rred in awarding compensation to the claimants ignoring the fact that awarding compensation to the claimants ignoring the fact that in in the accidentthe accident,, which resultedwhich resulted into the death of said Moinul Ali, no into the death of said Moinul Ali, no other vehicle except the motorcycleother vehicle except the motorcycle,, which he was riding at the which he was riding at the time of accident time of accident,, is involved. She submits that the is involved. She submits that the offending vehicle offending vehicle was owned by one was owned by one Jagrota Shiv Mandir Lottery CommitteeJagrota Shiv Mandir Lottery Committee. She . She further submits that in the policy against the offending vehicle in further submits that in the policy against the offending vehicle in the place where address of the owner is to be shown the address the place where address of the owner is to be shown the address of the deceased has been shown which indicates that the deceased of the deceased has been shown which indicates that the deceased was himself the owner of the was himself the owner of the offending offending vehicle.vehicle.

10. She further submits that otherwise also the Tribunal She further submits that otherwise also the Tribunal erred inerred in failing failing to consider the evidence on record to the effect that the offending to consider the evidence on record to the effect that the offending vehicle was borrowed by the deceased at the time of accident. She vehicle was borrowed by the deceased at the time of accident. She submits that in case of a borrower of the vehicle from the owner submits that in case of a borrower of the vehicle from the owner he steps into the shoes of the owner and he is nhe steps into the shoes of the owner and he is not entitled to claim ot entitled to claim compensation under Section 163compensation under Section 163 A of the Motor Vehicle Act,A of the Motor Vehicle Act, 19881988 apart from what has been apart from what has been contemplatedcontemplated in the insurance policy in the insurance policy itself.itself.

11. She submits that in the instant case the risk cover of the owner She submits that in the instant case the risk cover of the owner was only to the extent of Rs.was only to the extent of Rs.11,00,00,00,000/0/--,, therefore, she submits therefore, she submits that there are catena of judgments in which it has been held that that there are catena of judgments in which it has been held that when the deceased borrows a vehicle from its real owner he steps when the deceased borrows a vehicle from its real owner he steps into the shoes of owner of the motor vehicle and thus, he cannot into the shoes of owner of the motor vehicle and thus, he cannot claim compensation from the owneclaim compensation from the owner himself. In support of her r himself. In support of her submission, she has cited following rulings:submission, she has cited following rulings:

                   i. Ningamma & Another Vs. United India Insurance Ningamma & Another Vs. United India Insurance Company Limited, Company Limited, reported reported inin (2009) 13 SCC 710(2009) 13 SCC 710

                   ii. National Insurance Company Limited Vs. Smt. Pushpa National Insurance Company Limited Vs. Smt. Pushpa Kukrachua and 5 OthersKukrachua and 5 Others ((Judgment Judgment datedated 17.07.2019 in d 17.07.2019 in MAC Appeal No.96/2015).MAC Appeal No.96/2015).

                   iii. National Insurance Company Limited Vs. Smt. Uma Kanti National Insurance Company Limited Vs. Smt. Uma Kanti Konwar Konwar (Judgment dated 08.08.2018 MAC Appeal No. (Judgment dated 08.08.2018 MAC Appeal No. 313/2014).313/2014).

12. She further submits that even if the claim petition filed by the She further submits that even if the claim petition filed by the claimants before the Tribunal under claimants before the Tribunal under Section 163Section 163 AA of the Motor of the Motor Vehicle Act, 1988 Vehicle Act, 1988 is treated as an application under Section 166 is treated as an application under Section 166 ofof the Motor Vehicle Act, 1988 still the claimants were under the Motor Vehicle Act, 1988 still the claimants were under obligation to show that the accident occurred due to fault obligation to show that the accident occurred due to fault ofof some some other vehicle and the diseased wasother vehicle and the diseased was himself not negligent in any himself not negligent in any manner, which they failed to show. In support of her submission, manner, which they failed to show. In support of her submission, she has cited the following rulings of the Apex Court she has cited the following rulings of the Apex Court

                   i. Oriental InsuranceOriental Insurance Company LimitedCompany Limited Vs.Vs. Rajni Rajni DeviDevi reported in reported in (2008)(2008) 55 SCC 736 SCC 736

                   ii. Oriental Insurance Oriental Insurance CompanCompany Limitedy Limited Vs. Jhuma Saha Vs. Jhuma Saha andand OthersOthers reported in reported in (2007)(2007) 9 SCC 2639 SCC 263

13. On the other hand, Mr. K. Kalita, the learned counsel for the On the other hand, Mr. K. Kalita, the learned counsel for the respondents/claimantrespondents/claimantss has submitted that there is no infirmity or has submitted that there is no infirmity or illegality in the impugned judgment and the Motor Accident Claillegality in the impugned judgment and the Motor Accident Claims ims Tribunal has correctly awarded the compensation amount to the Tribunal has correctly awarded the compensation amount to the claimants after considering the evidence on record.claimants after considering the evidence on record.

14. He submits that the deceased was not a borrower of the offending He submits that the deceased was not a borrower of the offending vehicle from the owner of the vehicle rather he was an employee vehicle from the owner of the vehicle rather he was an employee of the owof the owner and there is categorical evidence to this effect in form ner and there is categorical evidence to this effect in form of the evidence on affidavit submitted by the claimant No.1 before of the evidence on affidavit submitted by the claimant No.1 before the Tribunal.the Tribunal.

15. He submits that the accident occurred due to mechanical defect of He submits that the accident occurred due to mechanical defect of the offending vehicle and the deceased was not athe offending vehicle and the deceased was not at fault in any t fault in any manner.manner. He also submits that the He also submits that the Ratio decidendiRatio decidendi in the case of in the case of “Ningamma & Another Vs. United India Insurance Company “Ningamma & Another Vs. United India Insurance Company Limited” (Supra)Limited” (Supra) is not applicable to the present case as rightly is not applicable to the present case as rightly held by the Motor Accident Claims Tribunal. He further submits that held by the Motor Accident Claims Tribunal. He further submits that the Insurance Company also failed to adduce any evidence during the Insurance Company also failed to adduce any evidence during the enquirthe enquiryy before the Motor Accident Claims Tribunal, therefore, before the Motor Accident Claims Tribunal, therefore, he submihe submits that the appeal is liable to be dismissed. ts that the appeal is liable to be dismissed.

16. I have considered the submissions made byI have considered the submissions made by thethe learned counsel for learned counsel for both sides and have gone through the materials available on both sides and have gone through the materials available on record. I have also gone through the ruling cited by the learned record. I have also gone through the ruling cited by the learned counsel for the apcounsel for the appellant in support of her submission.pellant in support of her submission.

17. The point to be determined in this appeal is as to whether the The point to be determined in this appeal is as to whether the Motor Accident Claims Tribunal was Motor Accident Claims Tribunal was correct in awarding correct in awarding compensation to the claimant by holding compensation to the claimant by holding that that the ratio in the the ratio in the judgment of the Apex Court in the casjudgment of the Apex Court in the case of e of “Ningamma & Another “Ningamma & Another Vs. United India Insurance Company Limited” (Supra)Vs. United India Insurance Company Limited” (Supra) is not is not applicable to the present case. applicable to the present case.

18. In the instant case, it appears that though in Column No.5 of the In the instant case, it appears that though in Column No.5 of the application under Section 166 of the application under Section 166 of the Motor Vehicle Act, 1988, Motor Vehicle Act, 1988, the the claimaclaimant has stated the occupation of the deceased to be business, nt has stated the occupation of the deceased to be business, however, in the evidence on affidavit of the sole witness for the however, in the evidence on affidavit of the sole witness for the claimant, it has been stated that the deceaseclaimant, it has been stated that the deceasedd was an employee of was an employee of Jagrota Shiv Mandir Lottery Committee. .

19. It appears that in the It appears that in the impugnimpugneded judgment, thoughjudgment, though,, the the Motor Motor Accident Claims Tribunal No. 2, Kamrup, Guwahati Accident Claims Tribunal No. 2, Kamrup, Guwahati has declined to has declined to believe that the deceased was an employee of believe that the deceased was an employee of Jagrota Shiv Mandir Jagrota Shiv Mandir Lottery Committee Lottery Committee as the claimant has not submitted any as the claimant has not submitted any document to show that he was so document to show that he was so employed. However, it held that employed. However, it held that the claimants are entitled to get compensation in the case without the claimants are entitled to get compensation in the case without justifying as to why justifying as to why the the Ratio decidendiRatio decidendi ofof the judgment in the the judgment in the case of case of “Ningamma & Another Vs. United India Insurance Company “Ningamma & Another Vs. United India Insurance Company Limited” (Supra)Limited” (Supra) is not appliis not applicable to the instant case. cable to the instant case.

20. The The Apex Court Apex Court has observed in the case of has observed in the case of “Ningamma & Another “Ningamma & Another Vs. United India Insurance Company Limited” (Supra)Vs. United India Insurance Company Limited” (Supra) as follows:as follows:

                   “19. In Oriental Insurance Co. Ltd. v. Rajni De-vi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was 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 deci-sion 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.

                   20. It was held in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] 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.

                   21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] 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 an 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 motor-bike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the de-ceased in the present case would step into the shoes of the owner of the vehicle.”

21. In the instant caseIn the instant case,, it appears that the claimants have not been it appears that the claimants have not been able to satisfy this able to satisfy this Court Court or to show any document to prove the or to show any document to prove the fact that the deceased was employfact that the deceased was employed by ed by Jagrota Shiv Mandir Lottery Committee. ThoughThough,, the deceased was not the owner of the deceased was not the owner of the motorcycle involved in the accidentthe motorcycle involved in the accident,, neither he was an neither he was an employee of the employee of the Jagrota Shiv Mandir Lottery Committee,, hhowever, owever, the the facts indicate that he was using the facts indicate that he was using the motorcycle with permission motorcycle with permission of its real owner of its real owner,, thereforetherefore,, he would step into the shoes of the he would step into the shoes of the owner of the motor vehicle. owner of the motor vehicle.

22. As the liability under Section 163A of the Motor Vehicle ActAs the liability under Section 163A of the Motor Vehicle Act, 1988, 1988 is is on the owner of the vehicle as held by the on the owner of the vehicle as held by the Apex Court Apex Court in the aboin the above ve referred judgment a person cannot be both a claimant and also a referred judgment a person cannot be both a claimant and also a person liableperson liable to pay compensation in to pay compensation in respect to a claim, thereforerespect to a claim, therefore,, the the heirsheirs of deceased could not have maintained a claim in terms of deceased could not have maintained a claim in terms of Section 163A of the Motor Vehicle Actof Section 163A of the Motor Vehicle Act,, 1988.1988. As, thAs, the e Motor Motor Accident Claims Tribunal Accident Claims Tribunal has faulted in the impugned judgment has faulted in the impugned judgment in in not considering this aspect, the inot considering this aspect, the impugned judgment and award ismpugned judgment and award is,, thereforetherefore,, liable to be set aside which this liable to be set aside which this CourtCourt, a, accordinglyccordingly,, does.does.

23. IIn view of the discussions made and reasons staten view of the discussions made and reasons stated in the d in the foregoing paragraphforegoing paragraph,, this appeal is allowed and the impugned this appeal is allowed and the impugned judgment and award isjudgment and award is,, herebyhereby,, set aside. set aside.

24. Send back the records of the Send back the records of the MAC Case No. 1126/2011MAC Case No. 1126/2011 to the to the concerned concerned Motor Accident Claims Tribunal Motor Accident Claims Tribunal along with a copy of this along with a copy of this judgment.