Tutan Saha vs Sunil Banik And Ors

[1] This appeal is filed by the original-opponent No.2 to challenge an award dated 6th March, 2019 passed by the Motor Accident Claims Tribunal, Gomati Judicial District, Udaipur in Title Suit (MAC) No.43/2015.

[2] Brief facts are as under:

One Smt. Prativa Saha, wife of the Claimant No.1 was proceeding on a motorcycle as a pillion rider. The motorcycle was driven by the present appellant, original-opponent No.2. At about 4.15 in the evening, it appears that Smt. Prativa Saha fell down from the vehicle and sustained grievous bodily injuries. The claimants alleged that the death of the deceased was on account of negligent driving by the present appellant. They claimed compensation of Rs.9,08,000/- from the driver-owner and the insurer of the vehicle. The Claims Tribunal awarded a compensation of Rs.7,27,390/-. With respect to liability of the insurance company, however, the Claims Tribunal came to the conclusion that the insurance policy did not cover the risk of a pillion rider and that therefore, the insurance company was not liable to pay the compensation. The Tribunal directed the appellant, original-opponent No.2, Sri Tutan Saha to pay the compensation. The appellant is, therefore, filed this appeal. His challenge is confined to the liability of the insurance company. According to him, the Claims Tribunal has committed serious error in absolving the insurance company of its liability though the insurance policy was a comprehensive insurance policy which would cover the risk of the pillion rider also.

[3] Mr. T. D. Majumder, learned counsel for the appellant vehemently contended that additional premium was collected from the insured which would ensure that the risk of the pillion rider was also covered by the insurance policy. The Tribunal, therefore, committed an error in absolving the insurance company.

[4] On the other hand, learned counsel Ms. R. Purkayastha for the insurance company opposed the appeal contending that the Claims Tribunal has come to a correct conclusion. She drew my attention to the insurance policy which was on record to contend that the policy was only an act policy and did not extend the liability of the insurance company to cover the risk of the pillion rider also.

[5] The question involved in this appeal is extremely narrow. Unless the insurer had paid additional premium for covering the risk of the pillion rider also, by settle law, the insurance company would not be obliged to cover the risk of the pillion rider, since the pillion rider cannot be stated to be a 3rd party. In other words, if the insurance policy was a mere statutory act policy, the risk of the pillion rider would not be covered by such insurance policy. In the present case, perusal of the insurance policy which is on record would suggest no evidence of collection of any additional premium from the insured. The limits of liability and the terms of insurance clearly provide that it is an act policy. In absence of any evidence suggesting that the premium paid by the insured was over and above the act policy insurance to cover the risk of the pillion rider also, the findings of the Tribunal cannot be overturned. There is no evidence that the present policy was a comprehensive policy extending the liability of the insurer to the risk of the pillion rider also. Learned counsel for the appellant, however, submitted that reference to the policy being one covered under Section II-1(i) would automatically imply that it was a policy which was comprehensive and also covered the risk of the pillion rider. In absence of any material documents on record to support this contention, the same cannot be accepted. Before the Claims Tribunal, no such defence was taken by the appellant herein. His oral submissions, therefore, would not be sufficient to ignore and discard the terms of the insurance policy which is on record.

[6] In the result, the appeal fails and is dismissed. Pending application(s), if any, also stands disposed of. Record may be transmitted to the lower Court.