JUDGMENT : 1. Both the insurers being aggrieved by the Judgment and Award dated 18.06.2010 passed in M.V.C.No.57 of 2000 by the Additional M.A.C.T., Sirsi (for short the ‘Tribunal’) have filed these appeals. 2. It is the case of the petitioners before the Tribunal that the husband of the 1st petitioner by name Suresh Hegde was going from Sirsi to Margoa on his motorcycle No.KA-31/H-3065 belonging to respondent No.3 along with pillion rider on N.H.-17, when he reached near Dapat Maxen village one Antonio Paulo Alfonso came from the opposite direction by driving his motorcycle bearing registration No.GA-02/K-2665 in a rash and negligent manner, he tried to overtake another vehicle from the opposite side and drove the motorcycle on the extreme right side of the road and dashed against the motorcycle of Suresh Hedge. Due to the collision said Suresh Hegde and pillion rider were seriously injured and they were shifted to Panji Hospital, where Suresh Hegde succumbed to the injuries. He was in patient for 55 days and the petitioners have spent Rs.60,000/-for his treatment. The deceased was employed as Security Officer at Shridhar Detective and security agency Hubli and was earning around Rs.40,000/-per year and he was sole bread earner in his family. Due to the death of Suresh Hegde there is a loss to the entire family, loss of love and affection to petitioner Nos.2 and 3 and loss of son to petitioner No.4 and there is loss of consortium to the petitioner No.1. Hence, they prayed to award compensation of Rs.8,00,000/-by filing petition under Section 163A of the Motor Vehicles Act, 1988 (for short the ‘Act’) against the owners and insurers of both the vehicles. 3. In response to the notice, respondent Nos.1 and 3 remained absent and they were placed ex-parte. Respondent Nos.2 and 4 appeared through their counsels before the Tribunal, respondent No.2 filed written statement denying the allegations made against respondent No.1 as false and the compensation claimed by the petitioners is highly inflated, excessive and abnormal without any basis. He has denied the injuries sustained by the deceased-Suresh Hegde and that he was inpatient for 55 days and the petitioners have spent Rs.60,000/-for his treatment. He has contended that the accident was due to the fault and negligence on the part of the deceased-Suresh Hegde. He has denied the injuries sustained by the deceased-Suresh Hegde and that he was inpatient for 55 days and the petitioners have spent Rs.60,000/-for his treatment. He has contended that the accident was due to the fault and negligence on the part of the deceased-Suresh Hegde. He has further specifically contended that the motorcycle bearing registration No.GA-02/KA-2665 was not insured with him, hence the question of paying compensation does not arise. Therefore, he prayed for dismissal of the petition. 4. Respondent No.4 filed written statement, wherein, he denied the averments made in the claim petition as false. He has denied the nature of injuries sustained by the deceased, period of treatment and medical expenses. As per the police records, the accident has taken place due to the negligence on the part of the deceased. The charge sheet was submitted against the deceased. Therefore, the legal representatives of the deceased-Suresh Hegde are not entitled to claim any compensation, hence the petition be dismissed. 5. On the basis of the pleadings of the parties Tribunal framed issues. In support of their claim petition, the petitioner No.1 and one witness were examined as PW-1 and PW-2 and got marked 129 documents at Ex.P.1 to Ex.P-129. The respondent Nos.2 to 4 have examined two witnesses and have got marked four documents as Ex.R-1 to Ex.R-4. 6. The learned Member of the Tribunal after hearing both the parties passed the impugned Judgment awarding compensation of Rs.5,04,994/-along with interest at the rate of 6% per annum from the date of petition till the date of deposit. Respondent Nos.1 to 4 were held liable to pay compensation and respondent Nos.2 and 4-Insurers were directed to pay the award amount at 50% each within 30 days from the date of order. 7. The respondent No.4-United India Insurance Company Limited being aggrieved by the said Judgment has filed M.F.A.No.24313 of 2010 on the ground that the Tribunal has committed error in holding that the claimants are entitled for compensation as the accident was due to the negligence of the deceased himself and he was the tort feasor. Further, the claim petition filed under Section 163A of the Act by the legal heirs of the deceased is not maintainable as against the appellant-Insurer of the motorcycle which deceased was driving. 8. Further, the claim petition filed under Section 163A of the Act by the legal heirs of the deceased is not maintainable as against the appellant-Insurer of the motorcycle which deceased was driving. 8. The respondent No.2-National Insurance Company Limited also being aggrieved by the impugned Judgment has filed M.F.A.No.20082 of 2011 on the ground that respondent No.1 who is the owner of the motorcycle bearing registration No.KA-31/H-3065 had not insured said vehicle with him and therefore, there is no question of paying compensation by him. He has also further contended that the claim petition under Section 163A of the Act is not maintainable in view of the law laid down by the Hon’ble Supreme Court of India in Ningamma and others v/s. United India Insurance Co.Ltd reported in ACJ-2009 page 2020. 9. Heard the learned counsels for the appellant-Insurers and respondents in both appeals. 10. A short question which arises for consideration in these appeals is as to whether the both Insurers have made out grounds to set aside the liability saddled against them to pay compensation in the ratio of 50: 50. 11. The learned counsels for the appellant-Insurers in both appeals vehemently contended that the deceased being a tort feasor against whom the charge sheet was filed, the claim petition under Section 163A of the Act by his legal representatives cannot be maintained. It was also vehemently contended that the petitioners cannot restricted the income of the deceased to Rs.40,000/-per annum so as to bring the petition under Section 163A of the Act. The learned counsel for the Insurer-National Insurance Company Limited further submitted that the vehicle of the respondent No.1 was not insured with him as on the date of accident and therefore saddling to pay 50% of the compensation against him is erroneous. 12. Per Contra, the learned counsel for the claimants submitted that previously the petition was filed under Section 166 of the Act and later it was got converted to a petition under Section 163A of the Act in view of the Judgment of this Court reported in ILR 2001 Kar 2879 (Guranna Wadi Vs. General Manager KSRTC) (Full Bench). The learned counsel further submitted that absolutely there is no bar to restrict the income of the deceased to Rs.40,000/-per annum so as to bring the petition under Section 163A of the Act. General Manager KSRTC) (Full Bench). The learned counsel further submitted that absolutely there is no bar to restrict the income of the deceased to Rs.40,000/-per annum so as to bring the petition under Section 163A of the Act. The learned counsel further submitted that in a petition under Section 163A of the Act the claimants need not prove negligence against any of the drivers of the vehicles and it is sufficient if claimants prove that the accident occurred by the use of the vehicle or vehicles, therefore he supported the Judgment and Award. 13. The learned counsels for the Insurers and the learned counsel for the claimants have vehemently argued on the question of restricting the claimant to Rs.40,000/-per annum so as to bring the petition under Section 163A of the Act. On this aspect the learned counsel for the Insurer has relied on the Judgment in the case of Deepal Girish Bhai Soni and Others v. United India Insurance Co. Ltd., Baroda reported in 2004 (2) T.A.C. 289 (Kant.) in this Judgment the Hon’ble Supreme Court has held in paragraph No.67 as follows : “67. We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/-per annual shall be treated as a cap. In our opinion, the proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/-can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” Therefore the Hon’ble Supreme Court has made a reference that they do not agree with the findings in Kodla’s case that if a person invokes the provisions of Section 163A of the Act the annual income of Rs.40,000/-shall be treated as cap. 14. The learned counsel for the claimants has relied on the Judgment in the case of Oriental Insurance Co. Ltd v. Hansrajbhai V.Kodala and Others reported in (2001) 5 SCC 175 the Hon’ble Supreme Court in paragraph No.15 has held as follows : “15. . . . . . . . . 14. The learned counsel for the claimants has relied on the Judgment in the case of Oriental Insurance Co. Ltd v. Hansrajbhai V.Kodala and Others reported in (2001) 5 SCC 175 the Hon’ble Supreme Court in paragraph No.15 has held as follows : “15. . . . . . . . . However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs.40,000/-which is the highest slab in the Second Schedule which indicates that the legislature wanted to give benefit of no-fault liability to a certain limit.” This observation of the Hon’ble Supreme Court was not agreed in the case of Deepal’s case stated supra, however absolutely there is no law laid down that the income of the claimant or the deceased cannot be restricted to Rs.40,000/-per annum so as to bring the petition under Section 163A of the Act. Therefore, in the present case the claimants filed petition under Section 163A of the Act restricting the income of the deceased to Rs.40,000/-per annum cannot be held as barred or not permissible. 15. The learned counsels for the Insurers have also submitted that the deceased himself being a tort feasor, the claim is not maintainable by his legal representatives. In this regard, the learned counsel for the claimants has relied on the Judgment in the case of United India Insurance Co.Ltd. v. Sunil Kumar and Anr. reported in LAWS(SC) 2017 11 44, the Hon’ble Supreme Court in this case has held in paragraph Nos.8 and 9 as follows: “8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.” Therefore, the question of Insurer raising the defense of negligence in petition under Section 163A of the Act does not arise and the insurer cannot be permitted to raise such a defense. This case has been followed by the division bench of this Court in the case of Narayana Rao and Another v. Nagaraj S/o.Subbanna and Another in M.F.A.No.7458 of 2014 (MV) decided on 29.05.2019. Therefore, absolutely there is no question of considering the negligence on the part of the rider of any of the vehicles arise in a petition filed under Section 163A of the Act. 16. Respondent No.3 is the owner of motorbike bearing registration No.KA-31/H-3065 before the Tribunal which was insured with respondent No.4 and it is admitted that the deceased was riding this motorcycle when the accident was occurred. 16. Respondent No.3 is the owner of motorbike bearing registration No.KA-31/H-3065 before the Tribunal which was insured with respondent No.4 and it is admitted that the deceased was riding this motorcycle when the accident was occurred. Therefore, the deceased who had borrowed the vehicle from respondent No.3 and while riding the said vehicle caused the accident, he steps into the shoes of the owner of the vehicle consequently, his legal representatives cannot maintain petition under Section 163A of the Act against his own insurer as held in the Judgment in the case of Ningamma and Another v. United India Insurance Co. Ltd, reported in 2009 (3) T.A.C. 13 (S.C) the Hon’ble Supreme Court in paragraph Nos.18 and 19 has held as follows : “18. In the case of Oriental Insurance Company Ltd. v. Rajini Devi and Others, (2008) 5 S.C.C. 736 : 2008(2) T.A.C. 752, wherein one of us namely, Hon’ble Justice S.B.Sinha is 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 decision 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. It was held in the said decision that Section 163-A of the M.V.A. 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 M.V.A. 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 163A of the M.V.A. In our considered opinion, the ratio of the aforesaid decision 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. 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 employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 19. We have already extracted Section 163A of the M.V.A. 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 163-A. 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. This proposition is absolutely clear on a reading of Section 163-A of the M.V.A. 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 163-A of the M.V.A.” Therefore, it is crystal clear that the legal representatives of the deceased who have stepped into the shoes of the owner of motorcycle could not have claimed compensation against respondent Nos.3 and 4 for the reasons that the deceased was riding the motorcycle borrowing the same from respondent No.3 and therefore he stepped into the shoes of owner/Insurer of the said vehicle and as such his legal representatives cannot maintain a claim petition under Section 163A of the Act against his own insurer as held in the case of Ningamma stated supra. Therefore the claim petition as against respondent Nos.3 and 4 is not at all maintainable and the finding of the Tribunal that respondent Nos.3 and 4 are liable to pay compensation to the extent of 50% is illegal, perverse and erroneous and is liable to be set aside so far as against respondent Nos.3 and 4 is concerned. 17. Therefore the claim petition as against respondent Nos.3 and 4 is not at all maintainable and the finding of the Tribunal that respondent Nos.3 and 4 are liable to pay compensation to the extent of 50% is illegal, perverse and erroneous and is liable to be set aside so far as against respondent Nos.3 and 4 is concerned. 17. The Hon’ble Supreme Court has also held in the case of Ningamma stated supra that the legal representatives of the person who was driving a motor vehicle after borrowing it from its real owner himself caused the accident without involving any other vehicle would not be entitled to compensation under Section 163A of the Act. In the present case, admittedly there are two vehicles involved, therefore the claim petition filed under Section 163A of the Act is maintainable as against respondent Nos.1 and 2. 18. Admittedly, respondent No.1 is the owner of the motorcycle bearing registration No.GA-02/K-2665 and that there was collusion between both the motorcycles. Respondent No.1-the owner of the said vehicle remained absent and he was placed ex-parte. Respondent No.2-insurer has taken a specific contention that the motorcycle bearing registration No.GA-02/K-2665 was not at all insured with him as on the date of the accident and therefore question of paying any compensation by him does not arise. In support of this contention respondent No.2-the Insurer has produced insurance policy in respect of the said vehicle at Ex.R-3. Ex.R-3 insurance policy in respect of motorcycle bearing registration No.GA-02/K-2665 was issued on 30.09.1999 and the accident in question occurred on 07.02.1999. Therefore, Ex.R-3 is the insurance policy issued after seven months of the accident. Neither the claimants nor the respondent No.1 have produced the insurance policy in respect of the said vehicle bearing registration No.GA-02/K-2665 which was inforce as on the date of the accident. 19. On the other hand, respondent No.2 by producing Ex.R-3 has proved that as on the date of the accident there was no insurance policy issued by him inforce in respect of the said vehicle, therefore on this ground which was pleaded and proved before the Tribunal, respondent No.2-the Insurer would not be liable to pay any compensation and no liability can be saddled against him as the offending vehicle was not at all insured with him as on the date of the accident. The Tribunal has not at all considered Ex.R-3 the insurance policy produced by respondent No.2 in respect of motorcycle bearing registration No.GA-02/K-2665 properly and has erroneously held that Ex.R-3 is the valid insurance policy in respect of said vehicle and therefore respondent No.2 is liable to pay compensation to the extent of 50%. Therefore, this finding of the Tribunal also being illegal and erroneous is liable to be set aside and liability saddled against respondent No.2-Insurer has to be set aside. Therefore, ultimately respondent No.1 the owner of motorcycle bearing registration No. GA-02/K-2665 alone is liable to satisfy the award passed in the case and the claim petition against respondent Nos.2 to 4 is liable to be dismissed. The point for consideration in these appeals is answered accordingly. In the result, this Court proceed to pass the following : ORDER The appeals in M.F.A.No.24313 of 2010 and M.F.A.No.20082 of 2011 are allowed. The Judgment and Award dated 18.06.2010 passed in M.V.C.No.57 of 2000 by the Additional Motor Accident Claims Tribunal, Sirsi so far as saddling liability against respondent Nos.2 and 4 is hereby set aside. Respondent No.1-Bremelo L. Rodrigues is liable to pay the compensation awarded on the claim petition and he is directed to deposit compensation amount before the Tribunal within a period of six weeks. The amount of compensation deposited in both the appeals shall be refunded to the respective appellants-Insurers.