Mn PIUS C. KURIAKOSE &A v. RAMAKRISHNA PILLAI, JJ

MACA Nos.1171 & 1226 of 2004.-:2:-compensation. They had also taken a contention that the deceased was holding a valid driving licence6. We have heard the learned counsel for the appellants in both the appeals. We have also perused the impugned common award. 7. Admittedly, the accident was self created. The deceased was ridinga motorcycle and he sustained fatal injuries, as the vehicle went and hit an electric post. The deceased who was riding the motorcycle was not the owner of the vehicle involved in the accident. It belonged to the first respondent in the claim petition. 8. The claim petition was filed under Section 163A of the MotorVehicles Act, 1988 and the learned Tribunal proceeded to pass an award on the basis that the claimants need not prove or establish the negligence in the claim under Section 163A of the Act. 9. Here, we are reminded ourselves of the principle laid down by the Apex Court in Nigamma and another v.

United India Insurance Co. Ltd.,(2009 ACJ 2020). In that case the maintainability of the claim petition filed by the dependents of the deceased under Section 163A of the Act was considered. In that case, the deceased was riding a motorcycle, which dashed against a bullock cart proceeding ahead, resulting in the death of the motorcyclist. It was in evidence that the deceased had borrowed the motorcycle from its owner. Allowing the claim petition filed by the legal MACA Nos.1171 & 1226 of 2004.-:3:-representatives under Section 163A of the Act, the Tribunal awarded compensation and directed the insurance company to pay the amount. Whenthe matter was taken in appeal before the High Court, the High Court held that the claim petition was not maintainable as there was no tortfeasorinvolved. The said decision was upheld by the Apex Court holding that as the deceased who was the borrower, stepped into the shoes of the owner and he cannot himself be a recipient of compensation as the liability to pay the same is on him.

The legal representatives of the deceased would not be entitled to claim compensation, especially because, no other vehicle was involved, it was held.10. The fact situation in this appeal is similar to the one referred to above. The learned counsel for the first respondent would argue that so longas the appellant insurance company failed to establish that there was negligence on the part of the deceased, the claimants are entitled to get compensation. Such an argument would have been sustainable, had another vehicle been involved in the accident. 11. It is an admitted case that the vehicle belonged to the second respondent and the deceased was not under any contract of employment with the second respondent. The deceased was only a borrower of the vehicle which caused the incident. No other vehicle was involved and the accident had occurred due to sheer misfortune. MACA Nos.1171 & 1226 of 2004.-:4:-12.

In the light of the decision of the Apex Court, Nigamma's case(cited supra), we are of the definite view that the claim petition filed by the appellants in MACA No.1171/04 is not maintainable. We are not going into the merits of the second contention raised by the appellant insurance company as the question of relevancy of driving licence will come into play only if, the insurance company is liable to pay compensation. On an anxious consideration of the entire facts and circumstances of this case, we allow MACA No.1226/2004 filed by the insurance company and set aside the impugned award. MACA No.1171/04 filed by the claimants, is dismissed. No costs. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- A. V. RAMAKRISHNA PILLAI JUDGE//TRUE COPY// P.A TO JUDGEkrj