National Insurance Co. Ltd. vs Pronita Tamuli Gogoi And Ors

Heard Mr. B.K. Purkayastha, learned counsel for the appellant and Mr. S. Das, learned counsel for the respondent Nos. 1 to 4. None appeared for

the respondent Nos. 5 & 6.

This appeal is filed by the Insurance Co. against the judgment and award dated 19.08.2011 passed by MACT, Lakhimpur in MAC Case No.

104/2008.

On 17-08-2008 one Bolindra Gogoi was riding a motorcycle bearing registration No. AS-07/A7318 as pillion rider. The said motorcycle collided

head on with another vehicle bearing registration No. AS-07/B-6763, and as a result of the accident, he sustained injury and died. The legal

representatives of the deceased Bolindra Gogoi filed an application before the MACT, North Lakhimpur praying for compensation and the learned

tribunal by the impugned judgment, awarded a compensation of Rs. 14,00,000/- with interest, fixing the responsibility to satisfy the award in equal

share on the insurer of both the vehicles.

The insurer of the motorcycle, in which the deceased was travelling as a pillion rider, preferred the instant appeal on the sole ground that the policy

was an ‘Act only policy’ and it did not cover the risk of pillion rider and as such, the insurer of the vehicle No. AS-07/A-7318 was not liable to

indemnify the owner for the death caused to the pillion rider.

It appears from the impugned judgment and award, that the appellant Insurance Co. did not raise the defence of the policy condition before the

tribunal, nor adduced any evidence to prove, that the policy was an ‘Act only policy’. Learned tribunal held both the vehicles equally liable for

the accident and directed the insurer of both the vehicles to pay compensation in equal share. However, during pendency of this appeal, the Insurance

Co. filed a petition under Order XLI Rule 27 CPC for adducing additional evidence to prove the policy, which was allowed. Pursuant to the said order,

the Insurance Co. has produced the policy, which transpires that it was an ‘Act only policy’. On the basis of the above policy, the learned

counsel for the Insurance Co. submits that since it was an ‘Act only policy’, the Insurance Co. was not liable to indemnify the insured for any

death caused to the pillion rider, who stands in the footing of a gratuitous passenger. To buttress the submission, learned counsel placed reliance on

General Manager, United Insurance Co. Ltd.-VS- M. Laxmi and Others reported in (2009) 17 SCC 301 wherein, the Apex Court quoted with

approval the ratio laid down in United Insurance Co. Ltd.-VS- Tilok Singh reported in (2006) 4 SCC 404 as under :-

“10. In United India Insurance Co. Ltd. v. Tilak Singh it has been noted as follows :- (SCC p. 412, para 21)

“21. In our view, although the observations made in Asha Rani Case1 were in connection with carrying passengers in a goods vehicle, the same

would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Co.

that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory

policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passengersâ€​.â€​

It is trite law that the risk of a gratuitous passenger or a pillion rider of a two wheeler is not covered by an Act only policy. Since evidently the

policy in the instant case was only an Act only policy, the appellant Insurance Co. could not have been saddled with the responsibility to indemnify the

insured for the death of the pillion rider. However, in absence of any pleadings or evidence adduced by the appellant with regard to the policy, learned

tribunal fixed the responsibility on both the Insurance Companies to satisfy the award. Learned counsel for the Insurance Co. submits that at the time

of filing the written statement, since no computerization was there, the appellant was not aware about the nature of the policy and therefore, failed to

adduce any evidence. Be that as it may, the fact remained is that the policy was an ‘Act only policy’ and as such, the Insurance Co. was not

liable to indemnify the insured in the instant case.

The accident took place in the year 2010 and the tribunal passed the judgment in 2011 and in the meantime, more than seven years have elapsed.

Having considered the facts and circumstances of the case in hand, it is directed that the award shall be satisfied by the Insurance Co. and recover

the same from the owner in the same proceeding.

Learned counsel for the appellant further submits that in the meantime, Rs.1,00,000/- was paid by the Insurance Co. The rest of the award falling in

the share of the owner of the motorcycle shall be paid by the appellant Insurance Co. by depositing the same with the tribunal within six weeks with

interest fixed by the tribunal.

The statutory deposit made by the Insurance Co. be returned.

Appeal is disposed of.        Â

Send back the LCR.