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Judgment
By this appeal filed under Section 173 of the Motor Vehicles Act, 1988 [for short "the Act"], the appellant takes exception to the judgment of the Claims Tribunal dated 26th August, 2004 passed in Claim Petition No. 514 of 2002.
The brief facts of the case are that one Shripat was proceeding on a scooter as a pillion rider. This scooter was insured by respondent no.6 who was its owner with the appellant ? Insurance Company. The scooter was being driven by the respondent no.5 when it met with an accident, resulting in fatal injuries to Shripat. On that basis, his legal heirs filed claim for compensation under Section 166 of the said Act. By the impugned order, the Claims Tribunal has awarded compensation of an amount of Rs.2,65,000-00 with a direction to the appellant to satisfy the Award and then recover this amount from the owner and driver of the vehicle.
Shri D. N. Kukday, learned counsel for the appellant, submitted that the Claims Tribunal was not justified in directing the appellant to first satisfy the Award and thereafter recover the same from the owner of the vehicle. According to him, the policy in question was an "Act policy" and the risk of the pillion rider was not covered. He submitted that a pillion rider on the scooter could not be treated to be third party in so far as said two wheeler is concerned, so as to saddle liability on the Insurance Company. He, therefore, submitted that the direction issued by the Claims Tribunal to first satisfy the Award and then recover the same is liable to be set aside. In support of his submissions, learned counsel placed reliance on the following decisions:- [a] National Insurance Co. Ltd. Vs. Balakrishnan & another [2013 ACJ 199],
[b] Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. & others [2008 ACJ 2045],
[c] United India Insurance Co. Ltd. Vs. Tilak Singh & others [II (2006) ACC 1 (SC)], and
[d] Ajay Ramesh Bhior Vs. Avinash Shantaram Jadial & another [III (2004) ACC 130 (DB)].
There was no appearance on behalf of the respondents on 16th August, 2016, 9th February, 2017 and 14th February, 2017. Today also, there is no appearance on behalf of the respondents. However, with the assistance of learned counsel for the appellant, I have perused the records of the case and I have given due consideration to his submission.
The point that arises for consideration is:- Whether the direction issued by the Claims Tribunal against the appellant to first pay the amount of compensation and then recover the same can be sustained?
As per the Policy at Exh.30, no extra premium was paid to cover the risk of a pillion rider. It was an "Act Policy." In Tilak Singh & others [supra], the Honourable Supreme Court held that where the insurance policy was a statutory policy, it did not cover the risk of death or bodily injury of a gratuitous passenger. The facts of said case indicate that the claimants therein were the legal heirs of the pillion rider riding on a scooter that was covered by an Act Policy. In said facts, it was observed that the Insurance Company did not owe any liability to cover the risk of the pillion rider as the insurance policy was a statutory policy. In Sudhakaran K.V. & others [supra], it was reiterated that unless requisite amount of premium is paid for covering risk of a pillion rider, the liability of Insurance Company cannot be extended with regard to the claim of a pillion rider. Yet again, in Balakrishnan & another [supra], the Honourable Supreme Court reiterated that only a comprehensive/package policy would cover the liability of insured for paying compensation for the occupant of a car and that third-party risk of an occupant of a private car would not be covered under the Act Policy
.
Considering the aforesaid facts and as the policy in question is an Act Policy, it will have to be held that the risk of the pillion rider was not covered as extra premium was not paid in that regard by the insured. The point as framed is answered by holding that in the facts of the present case, the appellant cannot be held liable to satisfy the award and then recover the same from the owner.
In view of aforesaid discussion, the Award of the Claims Tribunal dated 26th August, 2004 is partly modified. Direction Nos. 1 and 4 in the impugned Award as against the appellant alone are set aside. Rest of the Award is maintained. By order dated 6th October, 2005, the claimants were permitted to withdraw an amount of Rs.1,00,000-00, and were also granted liberty to receive the amount of interest on the balance invested amounts. The appellant is free to recover the aforesaid amounts from the insured. The balance amount lying in deposit shall be returned to the appellant with accrued interest.
Appeal is partly allowed in aforesaid terms. No costs.