Adilkhan Mustufakhan Pathan vs Husainbax Noorbhai Momin Suthar and 3

Honourable Mr. Justice K.S. Jhaveri

The above appeals are directed against the common judgment and awards dated 112.03.2010 passed by the learned Motor Accident Claims Tribunal (Auxi.), F.T.C. No. 2, Nadiad in Motor Accident Claim Petition No. 551 and 552 of 2007 wherein the Tribunal has awarded a sum of Rs. 1,54,500/- each in both petitions along with interest at the rate of 9% per annum from the date of application till realization. However, the original respondent No. 1 and 2 i.e. owner and insurance company were exonerated from the claim in question. On 8.11.2007 one minor Rehankhan Aadilkhan Pathan and Ruksanabibi Aadilkhan Pathan were traveling on a motor cycle as pillion riders. At that time a truck came and dashed with the motor cycle as a result of which said Rehankhan and Ruisanabibi expired. Hence the aforesaid claim petitions came to be filed wherein the aforesaid awards came to be passed.

The only contention raised on behalf of the appellant-original claimants is that the Tribunal committed an error in not following the provisions of Section 163A of the Act and thereby committed grave error in passing the award and exonerating the Insurance Company from making the payment of the compensation. According to the learned Advocate for the appellant it is a non-obstante clause nothing is required to be proved and plead and therefore the claimant is entitled to get the full compensation.

At this stage it is required to be noted that in the case of National Insurance Company Ltd. Vs. Sinitha and Others, , it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim u/s 163A of the Act by pleading and establishing a ''fault'' ground.

It is also required to be noted that if it is an Act policy and if no premium is paid for pillion rider, the Insurance Company cannot be held to be liable for the compensation. In the present case either before the Tribunal or even before this Court the appellant has failed to establishment that separate premium is paid for the pillion rider. Therefore the Tribunal has rightly passed the order exonerating the Insurance Company. In the premises aforesaid I do not find any merits in the present appeal. The appeals are therefore dismissed.