JUDGMENT : Ravikumar, J. This appeal is filed against the judgment and award dated 26.8.2016 in O.P.(MV)No.2337 of 2013 passed by the Motor Accidents Claims Tribunal, Ernakulam. The second respondent therein viz., the insurer of one of the vehicles involved in the accident filed this appeal on being aggrieved by the aforesaid judgment whereby and whereunder it was held liable to indemnify the first respondent, the owner of one of the said vehicles viz., Activa Scooter bearing Reg.No.KL-07/BH-7264 which was ridden by the deceased Shaji himself at the time of the accident. The accident in question had occurred on 30.4.2013 at about 11.15 p.m. Deceased shaji who was the husband of the first respondent was riding the said scooter from east to west, near Bank Junction at Edappilly. During its course, it collided with the motor cycle bearing Reg.No.KL-51C 1793 that came from the opposite direction. Shaji succumbed to the injuries sustained in the accident enroute to hospital. In the said circumstances, the owner of the Activa Scooter who is none other than the wife of the deceased was made the first respondent and the appellant herein who is the insurer of the said vehicle was made the second respondent, in the claim petition filed by the parents and children of the deceased Shaji under section 163A of the Motor Vehicles Act, 1988 seeking a compensation of Rs.3,50,000/-. In the contextual situation, it is only worthwhile to extract the averments in the claim petition, narrated in paragraph 2 of the impugned award which runs as follows:- “On 30.04.2013 at 11.15 pm while the deceased was returning to his house after purchasing medicines to 1st respondent on her activa scooter bearing registration No.KL 07 BH 7264 from east to west near bank junction, Edappally the said scooter collided with another motorcycle bearing registration No.KL 51C 1793 coming in the opposite direction. As a result of the accident the victim sustained grievous injuries. Though he was taken to hospital on the way he succumbed to the injuries.” 2. Obviously, in the claim petition, the claimants did not take up any pleading as to who was responsible for the accident or in other words, they did not plead as to whose negligence resulted in the accident. Though he was taken to hospital on the way he succumbed to the injuries.” 2. Obviously, in the claim petition, the claimants did not take up any pleading as to who was responsible for the accident or in other words, they did not plead as to whose negligence resulted in the accident. The only averment taken up in the claim petition was that the accident had occurred due to the collision between the Activa Scooter ridden by deceased Shaji and the motor cycle bearing Reg.No.KL-51C 1793. We are not oblivious of the provision under section 163A of the M.V.Act as also the position of law enunciated pertaining to the said provision by this Court as also the Hon'ble Apex Court that under section 163A, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. 3. The first respondent did not enter appearance. She was set ex parte and the second respondent therein/the appellant filed a written statement contending that the accident had occurred due to the collision of the scooter in which the victim was travelling with another motor cycle bearing Reg.No.KL-51C 1793. They have further taken up the following contentions:-The accident had occurred due to the negligent riding of the motor cycle bearing Reg.No.KL-51C 1793. The owner, rider and insurer of the said motor cycle, in such circumstances, were necessary parties to the claim petition and owing to their non-impleadment, it is bad by non joinder of necessary parties. The motor cycle bearing Reg.No.KL-51C 1793 was not having any valid insurance policy at the time of the accident and the rider of the said vehicle was also not having any valid driving licence. To buttress their contention, they relied on the charge sheet laid by the police in Crime No.4082/2013 registered at Edappilly Police Station and the FIR was produced by the claimants themselves as Ext.A1. The charge sheet laid after conducting investigation in the said crime, in terms of section 173(2) of the Code of Criminal Procedure, was also produced as Ext.A3, by them. The charge sheet laid after conducting investigation in the said crime, in terms of section 173(2) of the Code of Criminal Procedure, was also produced as Ext.A3, by them. It would go to show that the rider of the motor cycle bearing Reg.No.KL-51C 1793 was charged for having committed offences punishable under sections 279, 337 and 304(A) of the Indian Penal Code read with section 3(1), 146, 181 and 196 of the M.V.Act. In view of the said circumstances, the contention of the learned senior counsel appearing for the appellant is that the Tribunal had virtually ignored to take into serious consideration of those crucial aspects and its non-application of mind of such vital aspects culminated in the impugned judgment whereby and whereunder the appellant was called upon to indemnify the first respondent who is not only the owner of the vehicle but also the wife of the rider of the said vehicle. In the light of the undisputed and indisputable facts obtained in this case, the learned senior counsel further contended that the Tribunal went wrong in holding that the appellant was liable to indemnify the first respondent especially in view of the dictum laid down by the Apex Court in Ningamma and another v. United India Insurance Co.Ltd [ 2009 ACJ 2020 ]. The basis of the said contention is that when a legal heir of the insured owner rides or drives a vehicle insured with the insurance company, he or she is stepping into shoes of the insured owner and therefore, in the absence of receipt of any additional premium covering the risk of the rider, the insurer of the said vehicle cannot be called upon to indemnify the insured owner. The learned counsel further submitted that going by Ningamma's case, no one, be it a relative or not, when borrows a vehicle from the insured owner and meets with an accident during the course of its riding or driving, he/she cannot claim compensation from the insurer of the said vehicle as he or she, by such action, had stepped into shoes of the insured owner of the said vehicle. It is submitted that the liability under section 163A of the M.V.Act is on the owner of the vehicle and therefore, a person cannot be both viz., a claimant as also a recipient. It is submitted that the liability under section 163A of the M.V.Act is on the owner of the vehicle and therefore, a person cannot be both viz., a claimant as also a recipient. It is submitted that in the light of the said position obtained from the decision in Ningamma's case, the judgment and award of the Tribunal cannot be sustained. 4. Per contra, the learned counsel appearing for the respondents/claimants contended that the aforesaid contention raised by the appellant is bereft of any basis. It is further contended that a scanning of the impugned judgment would reveal that the Tribunal had carefully considered the dictum laid down in Ningamma's case and in National Insurance Co. Ltd. v. Sajitha Beegom N and others [ 2012 (3) KHC 527 ]. The submission is that a perusal of the impugned judgment would also reveal that after referring to those decisions, the Tribunal had virtually distinguished the said decisions holding that when a vehicle was taken by a person not for his exclusive use and essentially for the purpose of its owner, the person who took the vehicle for riding or driving would not fall under the expression 'borrower' and in such circumstances, the aforesaid decisions are inapplicable. It is submitted that the Tribunal had rightly appreciated the evidence to arrive at such a conclusion and since that being a plausible conclusion which could be arrived at from the evidence on record, an appellate interference is not called for. The learned counsel further submitted that as held by the Tribunal, in a case where a person was compelled to use a vehicle belonging to another with the consent of its owner for the purpose of the owner itself, use of such vehicle cannot be said to be one involving the process of borrowal of the said vehicle and in such circumstances, Ningamma's case and Sajitha Beegom's case are not applicable. It is submitted that in the case on hand, the deceased had taken the vehicle solely for the purchase of medicine for the first respondent, the owner of the Activa scooter. 5. It is submitted that in the case on hand, the deceased had taken the vehicle solely for the purchase of medicine for the first respondent, the owner of the Activa scooter. 5. In the light of the rival submissions and the indisputable facts and evidence obtained in this case, the question whether the Tribunal was justified in saddling liability to indemnify the first respondent, insured owner of the scooter involved in accident in which the deceased was travelling at the time of the accident, has to be looked into. As noticed hereinbefore, there is no dispute regarding the fact that the deceased was riding Activa Scooter bearing Reg.No.KL-07/BH-7264 belonging to the first respondent who is none other than his wife. The accident had occurred during the course of its riding. The respondents/petitioners themselves produced Ext.A1 FIR and Ext.A3 charge sheet before the Tribunal. Ext.A1 would reveal that in connection with the said accident, a crime was registered as crime No.4082/2013 at Edappilly Police Station and after conducting investigation into the crime, the charge was laid under the aforementioned sections of the IPC and also under the M.V.Act, against the rider of the motor cycle bearing Reg.No.KL-51C 1793. True that the petitioners/respondents herein were not under an obligation to plead or establish that death of Shaji was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person as they filed the claim petition under section 163A of the M.V.Act. But, does it mean that an insurer who is arrayed as a respondent cannot plead its total non-liability to indemnify the insured owner of the vehicle concerned based on the evidence on record and thereby, for exoneration, under any circumstances whatsoever. True that in this case, in the written statement filed by the second respondent, the appellant herein had not raised any contention that the accident had occurred due to the negligence on the part of the victim, rider of the Activa Scooter. But at the same time, its contention is to the effect that the accident had occurred due to the negligence on the part of the rider of the motor cycle bearing Reg.No.KL-51C 1793 and it is supported by the documentary evidence in Exts.A1 and A3. But at the same time, its contention is to the effect that the accident had occurred due to the negligence on the part of the rider of the motor cycle bearing Reg.No.KL-51C 1793 and it is supported by the documentary evidence in Exts.A1 and A3. In this context, it is relevant to note that what was averred in the claim petition is that the scooter ridden by the victim Shaji had collided with the motorcycle bearing Reg.No.KL-51C 1793 coming from the opposite direction. In New India Assurance Co. Ltd. v. Pazhaniammal [ 2011 (3) KLT 648 ], this Court held that in a claim petition filed under section 166 of the M.V Act, production of police charge sheet would be a prima facie sufficient evidence regarding negligence. True that the claim petition was filed in this case under section 163A of the M.V.Act and not under section 166 of the said Act. Even then, when the claimants themselves produced charge sheet laid in the crime registered in connection with the accident in question after investigation, as evidence on their side and when it revealed absence of accusation against the rider/driver of the vehicle concerned insured with any particular insurer, how can it be said that it would not be open to the insurer concerned to rely on such a document to raise contentions legally permissible, based on it. 6. There is no allegation of negligence on the part of the rider of the vehicle insured with appellant insurer. The basis of the liability under section 163A of the M.V.Act is also nothing other than tortious liability. A contract of insurance covering third party risk must always be a contract of indemnity. In a contract of insurance, the privity of contract is strictly between the insurer and the insured only. In a claim for compensation by a third party, the insurer's liability can only be secondary and therefore, on principle unless liability is first fastened on the insured, none can possibly fall on the insurer who has only undertaken to indemnify the loss or damage suffered by the insured. A bare reading of section 149 of the M.V Act would indicate that the liability of the insurer arises only when a judgment or award is obtained against the insured person who has taken up the policy of insurance. A bare reading of section 149 of the M.V Act would indicate that the liability of the insurer arises only when a judgment or award is obtained against the insured person who has taken up the policy of insurance. Therefore, if in any given case, going by the pleadings and evidence on record, there is no ground to fasten liability on the insured owner, the insurer cannot be saddled with the liability to compensate the claimant as in such a case, there would not be a situation to indemnify the insured owner. When the prima facie evidence flowing from Ext.A3, the charge sheet registered in connection with the accident in question, is to the effect that the rider of the motor cycle alone was made an accused and in the absence of any rebuttal evidence, it cannot be held that it is the negligence of someone else that has resulted in the accident. It is true that the claimants shall not be required to plead and establish that death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. But, can it be reason to make an insurer, who based on the evidence on record, not at all liable or could not be made liable, to pay compensation to the claimant/claimants in indemnification of the insured owner of the vehicle concerned even when the said insured owner could not be hold liable. It is in the said circumstances that position of law that a contract of insurance covering third party risk must always be a contract of indemnity, assumes relevance. From the appendix of the impugned judgment, it is evident that, before the Tribunal, both sides did not adduce any oral evidence. No documentary evidence was adduced on the side of respondents including the appellant herein. In short, the only evidence available before the Tribunal was the documentary evidence adduced by the claimants/respondents herein themselves consisting of Exts.A1 to A5. When there is no involvement of the vehicle insured with a party insurance company capable of fastening liability for the loss or damage resulted from the motor vehicle accident, how can its insurer be called upon to compensate the claimant holding that it is under contractual obligation to indemnify the insured. When there is no involvement of the vehicle insured with a party insurance company capable of fastening liability for the loss or damage resulted from the motor vehicle accident, how can its insurer be called upon to compensate the claimant holding that it is under contractual obligation to indemnify the insured. Ext.A3 which is the only piece of evidence available, in this case, for the purpose of considering the question of responsibility for the accident and when it reveals that, though two vehicles involved in the accident, the rider of one of the vehicles (here the motor cycle) alone was charge sheeted, how can the insurer of the other vehicle be saddled with the liability to indemnify its insured owner. Though the claimant in a claim petition filed under section 163A of the M.V.Act shall not be required to plead or establish any wrongful act, neglect or default on the part of the insurer of the vehicle/vehicles concerned or any other person, can the claimant simply claim compensation from the insurer of the vehicle even when the owner of that vehicle could not be legally fastened, firstly, with liability. Essentially, in a claim for compensation under Section 163A of the M.V. Act, the liability is that of the owner. 7. In the case on hand, the precise case of the claimants was that the victim of the accident was riding the Activa scooter belonging to the first respondent viz., his own wife and at the place of accident, it collided with the motorcycle bearing Reg.No.KL-51C 1793. The further undisputed case is that the injuries sustained by him in the said accident took away his life. We will firstly consider the question, in such circumstances, whether the Tribunal was justified in distinguishing the decision of the Hon'ble Apex Court in Ningamma's case as also Sajitha Beegom's case. Sajitha Beegom's case was rendered by this Court relying on the dictum laid down in Ningamma's case. 8. We will firstly consider the question, in such circumstances, whether the Tribunal was justified in distinguishing the decision of the Hon'ble Apex Court in Ningamma's case as also Sajitha Beegom's case. Sajitha Beegom's case was rendered by this Court relying on the dictum laid down in Ningamma's case. 8. The ratio of the decision in Ningamma's case is that when a vehicle is borrowed from its real owner and if the borrower meets with an accident during the course of its riding or driving, he or his legal heirs or legal representatives could not be entitled to claim compensation for the death or injury caused by the use of that vehicle as in such eventuality, the borrower had virtually stepped into shoes of the insured owner of the said vehicle. Paragraph 19 of the said decision lays down the dictum after reporting to an earlier decision and it reads thus:- We have already extracted Section 163A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. The proposition is absolutely clear on a reading of Section 163A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the MVA. True that, in the case on hand, the borrower is related to the real owner of the vehicle in question, it is submitted. Whether the borrower is related to or unrelated to, the insured owner is irrelevant for the purpose of applying the dictum in Ningamma's case if the rider of the vehicle had actually borrowed the said vehicle which he was riding/driving at the time of the accident from its owner. Whether the borrower is related to or unrelated to, the insured owner is irrelevant for the purpose of applying the dictum in Ningamma's case if the rider of the vehicle had actually borrowed the said vehicle which he was riding/driving at the time of the accident from its owner. We are of the view that irrespective of the relationship between the owner and the borrower, the action would amount to the borrowal of the said vehicle. 9. The next question is merely because the vehicle was taken from the real owner for the purpose of the owner, the act would fall outside the expression 'borrowal'. We are afraid the interpretation given by the Tribunal would go against the very decision of the Apex Court in Ningamma's case. It is not the purpose for which the vehicle was taken for use from the owner that gives the claim the colour of borrowal. It is the actual ownership of the said vehicle that would decide the question. If the vehicle in question actually owned by one person and it was taken for use by another, with the consent of that person, the said act can constitute only a process called borrowal. It is only worthwhile to look into the meaning of the word `borrow'. It means `to take or obtain (something) on a promise to return it'. May be the question could be approached in a different angle. But, when once the Hon'ble Apex Court rendered a decision having binding force, such a reason could not be assigned by the Tribunal to distinguish the decision and the power to revisit the decision lies only with the Apex Court. We are fortified in our view by the decision of the Hon'ble Apex Court in Fuzlunbi v. K.Khader Vali reported in AIR 1980 SC 1730 . It was held:- “10. Glanville Williams in his “Learning the Law” (pp.77-78) gives one of the reasons persuading judges to distinguish precedents as: “that the earlier decision is altogether unpalatable to the court in the later case, so that the latter court wishes to interpret it as narrowly as possible. The same learned author notes that some judges may “in extreme and unusual circumstances, be apt to seize on almost any factual difference between this previous case and the case before him in order to arrive at a different decision. The same learned author notes that some judges may “in extreme and unusual circumstances, be apt to seize on almost any factual difference between this previous case and the case before him in order to arrive at a different decision. Some precedents are continually left on the shelf in this way, as a wag observed, they become very “distinguished”. The limit of the process is reached when a judge says that the precedent is an authority only “on its actual facts”. We need hardly say that these devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents but because of the imperatives of Article 141.” Going by Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India. Thus, the position is crystal clear that a mere factual difference cannot and will not be sufficient to interpret the ratio narrowly and to arrive at a different decision. In such circumstances, the interpretation given by the Tribunal reckoning the aforesaid aspects to distinguish the decision of the Apex Court in Ningamma's case cannot be sustained. In view of the indisputable and undisputed facts obtained in this case that the deceased was not the real owner of the Activa Scooter ridden by him at the time of the accident and that its real owner was the first respondent, we are of the considered view that the relationship between the victim and the owner would not and could not change the nature of the process involved in taking a vehicle by someone from its real owner, whatever be the purpose. It must come within the expression 'borrowal' and therefore, it can only be said that the deceased had borrowed the vehicle from its real owner, the first respondent and thereby stepped into the shoes of the owner of the vehicle. In view of the facts thus obtained, we are of the considered view that the Tribunal had clearly erred in holding that the decision of the Hon'ble Apex Court in Ningamma's case and the decision of this Court in Sajitha Beegom's case are inapplicable in the case on hand. In view of the facts thus obtained, we are of the considered view that the Tribunal had clearly erred in holding that the decision of the Hon'ble Apex Court in Ningamma's case and the decision of this Court in Sajitha Beegom's case are inapplicable in the case on hand. In Ningamma's case the Apex Court had, in unambiguous terms held that liability under section 163A of the M.V.Act is on the owner of the vehicle and a person could not be both viz., a claimant and recipient. True that since the policy in question was not produced by the insurer, the Tribunal had no occasion to consider whether the additional premium to cover the risk of the rider was paid or not and therefore, in terms of the policy where the deceased was covered under the policy so as to make the appellant insurance company liable to make payment to the heirs, viz., the appellants. We will deal with that aspect a little later. When once we have already arrived at the conclusion that the victim had borrowed the vehicle from the first respondent and therefore, the mere fact that the first respondent is none other than his wife or that he had borrowed it for her purpose would not take the case outside the purview of Ningamma's case. At any rate, assigning such reasons a binding decision of the Hon'ble Apex Court ought not to have been distinguished by the Tribunal. In that view of the matter, we have already held that the impugned judgment calls for interference. But the question is whether for the aforesaid conclusion and findings, the claim petition is liable to be dismissed. 10. While considering the said question, the very decision in Ningamma's case (supra) would assume relevance. It is evident from the rival pleadings and evidence on record that by the use of a motor vehicle, Shaji, the husband of the first respondent had sustained injuries and he succumbed to such injuries. It is to be noted that paragraph 13 of Ningamma's case would reveal the question that fell for consideration of the Hon'ble Apex Court in that case. It is to be noted that paragraph 13 of Ningamma's case would reveal the question that fell for consideration of the Hon'ble Apex Court in that case. It is in so far as relevant reads thus:- “In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163A of MVA or under any other provisions of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative?” A perusal of the above narrated recital from paragraph 13 therein would reveal that in Ningamma's case, besides the vehicle ridden by the victim in the accident, no other vehicle had involved in the accident. Still, the Hon'ble Apex Court went on to consider the question whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in section 166 of the M.V.Act. The Apex Court further observed in paragraph 20 therein thus:- “When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs.” We believe that the said observations would better suit to the case on hand and in fact, the case on hand stands on a firmer footing. Admittedly, in this case, there was involvement of another vehicle viz., motorcycle bearing Reg.No.KL-51C 1793. So also, Ext.A3 police charge sheet would reveal that the driver of the said motorcycle is arraigned as the accused therein. Admittedly, in this case, there was involvement of another vehicle viz., motorcycle bearing Reg.No.KL-51C 1793. So also, Ext.A3 police charge sheet would reveal that the driver of the said motorcycle is arraigned as the accused therein. However, in this context, it is only appropriate to note that no tort-feasor, in that view of the matter, was joined in the claim petition. 11. In the circumstances, it is worthy to refer to section 158(6) of the M.V.Act, as well. It reads thus:- “158(6).As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunals having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.” 12. In this case, the sole evidence on record would prima facie suggest that the rider of the motor cycle was negligent and therefore, responsible for the accident. We may hasten to add that we shall not be understood to have held that the rider of the motorcycle was negligent and therefore, responsible for the accident as that question could not be considered behind the back of the rider and owner of the said vehicle, by the Tribunal. As noticed hereinbefore, if the owner of the Activa scooter, the first respondent, had paid any additional premium to cover the risk of the rider of the said vehicle, the question of liability of the insurer-appellant arising therefrom can also be considered, if required, provided appropriate steps are taken in that regard. 13. There can be no doubt that the issues mentioned above are all purely questions of fact and hence, we do not think it correct and appropriate to consider those issues. We are also of the view that to enable such consideration, in accordance with law, after affording proper opportunities to the parties, it is liable to be remanded. In the circumstances, the impugned judgment is set aside. We are also of the view that to enable such consideration, in accordance with law, after affording proper opportunities to the parties, it is liable to be remanded. In the circumstances, the impugned judgment is set aside. While setting aside the impugned judgment holding that the appellant is not liable to indemnify the first respondent and thereby to compensate the petitioners/respondents as things stand today, we are inclined to remand the matter for fresh consideration by the Tribunal in tune with what is stated above. Needless to say that it would be open to the petitioners to make appropriate application before the Tribunal to have a proper consideration of the claim petition in view of our observations, conclusion and findings.