JUDGMENT : B.V.L.N. CHAKRAVARTHI, J. 1. Heard Smt. A. Jayanthi, learned counsel for appellant and Sri B. Siva Kesava Reddy, learned counsel for respondents/claimants who appeared through Video Conference. 2. This appeal is directed by the 2nd respondent/Insurance Company against the award dated 23.08.2011 passed in M.V.O.P. No. 84/2009 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Kurnool at Adoni. 3. For the sake of convenience, the parties are arrayed as parties before the learned Tribunal. 4. The application was filed under U/s. 163-A and 166 of Motor Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- for the death of Maddineni Venkata Rangaiah (hereinafter referred as ‘deceased’) in a motor vehicle accident occurred on 28.04.2008 near Pathakothacheruvu village. 5. The case of the claimants is that the 1st claimant is the wife, 2nd claimant is the father, claimants No. 3 and 4 are minor children of the deceased; on 28.04.2008 the 1st claimant as pillion rider, and the deceased as driver were travelling on motor cycle bearing No. AP 02 YY TR 1487 belonging to the 1st respondent, to go to Vaduguru village; they reached the place of accident at about 09.30 a.m.; the deceased, could not control the speed and dashed a big boulder; as a result, the deceased sustained head injury and died at the spot; the 1st claimant sustained injuries; the deceased aged about 42 years and working as Driver in military; also doing agricultural work, earning Rs.1,00,000/- per annum; the claimants are deprived of livelihood; hence, filed claim petition seeking compensation. 6. The 1st respondent/owner of the offending vehicle filed counter, contending that the accident was occurred due to negligence of deceased, and that the vehicle was insured with the 2nd respondent; the insurance policy was in force; and therefore, the 2nd respondent is liable to indemnify the 1st respondent. 7. The insurer of the offending vehicle i.e. Insurance Company filed counter, contending that it is not liable to pay compensation as accident was occurred due to the self-negligence of the deceased and risk was not covered as per terms and conditions of the insurance policy; there is no contractual liability on the part of the Insurance Company to pay compensation to the claimants. 8. Basing on the above pleadings of both parties, the learned Tribunal framed the following issues for trial: 1. 8. Basing on the above pleadings of both parties, the learned Tribunal framed the following issues for trial: 1. Whether the accident and the resultant death of deceased M. Venkata Rangaiah had occurred due to the rash and negligent driving of the motor cycle of the respondent No. 1 bearing No. AP 02 YY TR 1487? 2. Whether the petitioners are entitled to the compensation, and if so, to what amount and from which of the respondents? 3. To what relief the petitioners are entitled? 9. Before the learned Tribunal, on behalf of the claimants, one witness was examined as PW-1 and three documents were marked as Exs.A-1 to A-3 respectively. On behalf of the 2nd respondent/Insurance Company, its official was examined as RW-1 and copy of insurance policy was marked as Ex.B-1. No evidence was placed on behalf of the 1st respondent. 10. The learned Tribunal considering the evidence, on issue No. 1, held that the deceased died due to accident, and that the accident was occurred due to rash and negligent driving of the deceased. The learned Tribunal on issue No. 2 held that as per section 147(b) of Motor Vehicles Act “the insurance of person or class of persons specified in the policy to the extent specified in sub-section (2) entitled for compensation, but when a third party insurance is there, definitely the deceased though was driving the vehicle is a third party being not registered owner of it, and that the petitioners are entitled for compensation, even though the deceased was not a registered owner of the vehicle.” 11. The learned Tribunal, assessed the loss of dependency, basing on the judgment of the Hon’ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others, 2009 ACJ 1298 and awarded an amount of Rs.3,96,500/- towards just compensation with interest @ 7.5% p.a. from the date of petition, till the date of realisation, and made the 1st respondent, 2nd respondent/Insurance Company jointly and severally liable to pay compensation amount to the claimants. 12. Delhi Road Transport Corporation and others, 2009 ACJ 1298 and awarded an amount of Rs.3,96,500/- towards just compensation with interest @ 7.5% p.a. from the date of petition, till the date of realisation, and made the 1st respondent, 2nd respondent/Insurance Company jointly and severally liable to pay compensation amount to the claimants. 12. The 2nd respondent/Insurance Company filed the appeal, challenging the award and decree of the learned Tribunal mainly on the ground that as per the admitted facts of the case, the deceased borrowed the impugned motor cycle involved in the accident from the 1st respondent, who is his relative, and therefore, he stepped into the shoes of the owner, and the accident was occurred due to the negligence of the deceased, and Ex.B-1 insurance policy does not cover risk of the owner/driver of the vehicle and, in that view of the matter, the claim petition is not maintainable as a person cannot be both a claimant as also a recipient, and therefore, the heirs of the owner could not have maintained the claim in terms of section 163-A or 166 of Motor Vehicles Act, 1988. 13. The learned counsel for appellant contended that the deceased borrowed, the offending vehicle will steps into the shoes of the owner of the motor cycle, and hence, the claim is not maintainable as a person cannot both a claimant as also a recipient, and, therefore, the claimants, who are the legal heirs of the deceased could not have maintained the claim in terms of the sections 163-A or 166 of the Act, as Ex.B-1 copy of insurance policy does not cover the risk of the owner/driver of the motor cycle, since no premium paid. 14. She would further submit that the learned Tribunal erroneously treated the deceased as a third party relying on section 147 (b) of Motor Vehicles Act, 1988 in relation to the borrowed vehicle, though they are not covered by section 147 of Motor Vehicles Act, and hence, the award and decree of the learned Tribunal shall be set aside. 15. In support of her arguments, she relied upon the judgment of the Hon’ble Apex Court in the case of Ramkhiladi and another Vs. United India Insurance Company and another, 2020 (2) SCC 550 . 16. 15. In support of her arguments, she relied upon the judgment of the Hon’ble Apex Court in the case of Ramkhiladi and another Vs. United India Insurance Company and another, 2020 (2) SCC 550 . 16. The learned counsel for respondents/claimants would submit that the claim petition was filed U/s. 163-A and 166 of Motor Vehicles Act 1988, and the learned Tribunal considered the claim petition U/s. 166 of Motor Vehicles Act and basing on treated the deceased as a third party to the vehicle U/s. 147(b) of Motor Vehicles Act, and accordingly, awarded compensation, and therefore, there are no grounds to interfere with the findings of the learned Tribunal. 17. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the deceased, who borrowed the offending vehicle from the owner of the vehicle will step into the shoes of the owner? If so, the heirs of the deceased could not have maintained the claim? 2. To what relief? 18. POINT No. 1: In the case on hand, admittedly, even as per the case of the claimants, the deceased was driving the motor cycle bearing No. AP 02 YY TR 1487 belonging to the 1st respondent at the time of accident on 28.04.2008 at about 09.30 a.m. near Pathakothacheruvu Village. It is also an admitted fact that the 1st claimant is the wife of the deceased, and that she was pillion rider at the time of accident. She made a statement to the police regarding the way in which the accident was occurred, and the same was registered as Ex.A-1 FIR by Guntakal Rural Police. 19. Perusal of Ex.A-1 would show that the motor cycle bearing No. AP 02 YY TR 1487 belongs to the 1st respondent, and that the deceased borrowed the said motor cycle from the 1st respondent, who is a relative of the deceased, to go to Vaduguru village and that at about 09.30 a.m. while the deceased driving the motor cycle and PW-1 as pillion rider, reached a place near Pathakothacheruvu village road turning; the deceased could not control the motor cycle as it was going fast; dashed a big boulder, as a result, the deceased and PW-1 fell down; the deceased sustained head injury and died at the spot; PW-1 in her evidence deposed same facts before the learned Tribunal. Hence, the material placed before the learned Tribunal would establish that the 1st respondent is the owner of the motor cycle involved in the accident. He is a relative of the deceased. The motor cycle was borrowed by the deceased to go to Vaduguru village, on personal work. 20. The Hon’ble Apex Court in the case of Ramkhiladi and another Vs. United India Insurance Company and another, in similar circumstances, on a question, ‘whether the deceased not being a third party to the vehicle, being in the shoes of the owner can maintain claim U/s. 163-A of the Act from the owner of the said vehicle’, relying on earlier decision of the Hon’ble Apex Court in the case of Ningamma v. United India Insurance Co. Ltd. (2009) 13 SCC 710 , held that “the legal representatives of the deceased could not have maintained this claim against the real owner of the motor cycle, which was being driven by the deceased as borrower would step into the shoes of the owner.” The Hon’ble Apex Court further held that “there cannot be any dispute that liability of the Insurance Company would be as per terms and conditions of the contract of insurance.” Relying on the earlier judgment of the Hon’ble Apex Court in the case of Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553 , held that “in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. It is further held that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.” 21. The Hon’ble Apex Court in the case of Ramkhiladi and another Vs. United India Insurance Company and another, wherein, the claim was made against the owner and Insurance Company of the vehicle, which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle, held that he would step into the shoes of the owner. Hon’ble Apex Court in the case of Oriental Insurance Co. United India Insurance Company and another, wherein, the claim was made against the owner and Insurance Company of the vehicle, which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle, held that he would step into the shoes of the owner. Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. V. Rajni Devi, (2008) 5 SCC 736 laid a proposition that “provision of section 163-A of the Act cannot said to have any application with regard to an accident, wherein the owner of the motor vehicle himself is involved.” 22. The Hon’ble Apex Court after considering the earlier decisions in the following cases: 1. Oriental Insurance Co. Ltd. V. Jhuma Saha, (2007) 9 SCC 263 2. National Insurance Co. Ltd. V. Laxmi Narain Dhut, (2007) 3 SCC 700 3. Premkumari V. Prahlad Dev, (2008) 3 SCC 193 Concluded that “the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act, and only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), the parties shall be governed by the terms and conditions of the contract of insurance.” 23. Therefore, the owner of the vehicle as a person cannot be both, a claimant as also a recipient, and, therefore, the heirs of the owner could not have maintained the claim, and only the terms of the contract of insurance could be taken recourse to. In such circumstances, the parties shall be governed by the terms and conditions of the contract of insurance. Section 147 does not require an insurance company to assume risk for death or bodily injury of the owner of the vehicle. 24. In the case on hand, the admittedly the deceased borrowed the vehicle from the owner of the motorcycle involved in the accident (1st respondent). The accident was occurred while the deceased was driving the vehicle, and it was occurred due to his negligence. Therefore, the deceased would step into the shoes of the owner of the motorcycle. 24. In the case on hand, the admittedly the deceased borrowed the vehicle from the owner of the motorcycle involved in the accident (1st respondent). The accident was occurred while the deceased was driving the vehicle, and it was occurred due to his negligence. Therefore, the deceased would step into the shoes of the owner of the motorcycle. Hence, the claimants, who are the legal heirs of the deceased could not have maintained the claim. They are governed by the terms of contract of insurance. Ex. B-1 is a copy the insurance policy issued by the appellant/Insurance Company. It is Act only policy. No premium was paid covering risk of the owner/driver. 25. In view of the above principles, who he is a borrower of the vehicle, would step into the shoes of the owner. Therefore, the claimants, who are the legal heirs of the deceased could not have maintained the claim petition, as a person cannot be both a claimant and a recipient. Accordingly, the point is answered. 26. POINT No. 2: To what relief? In the light of foregoing discussion, the award and decree passed by the learned Tribunal against the appellant/Insurance Company is liable to be set aside. Hence, the appeal be allowed, setting aside the award and decree dated 23.08.2011 passed in M.V.O.P. No. 84/2009 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Kurnool at Adoni. 27. At the time of admitting the appeal on 20.03.2012, this Court directed the appellant/Insurance Company to deposit 50% of the compensation amount, and permitted the claimants to withdraw the said amount. Now, at this length of time, it would be difficult for the claimants to refund the said amount, who lost their bread winner in the motor vehicle accident. Considering the peculiar facts of this case, it is ordered that the claimants need not refund the amount, if any withdrawn, out of the 50% amount deposited by the appellant/Insurance Company as per earlier orders of this Court. 28. In the result, the appeal is allowed, by setting aside the award and decree dated 23.08.2011 passed in M.V.O.P. No. 84/2009 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Kurnool at Adoni. There shall be no order as to costs. 29. As a sequel, miscellaneous applications pending, if any, shall stand closed.