HIGH COURT OF CHATTISGARH AT BILASPUR Misc. Appeal No.185 of 2002

United India Insurance Company Ltd

...Petitioners

Versus

1. Smt. Dadani

2. Vishwanath Kushwa

3. Nirmala

4. Shri Bholanath Ghosh

5. Salim Khan

...Respondents

APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT ! Mr. R. Tripathi, Counsel for the appellant ^ Ms. Sharmila Singhai, Counsel for respondents 1, 2 & 3 Mr. Dilip Dubey, Counsel for respondent No.4. None for respondent No.5, though served. Honble Shri Rajeev Gupta,Hon'ble Shri Sunil Kumar Sinha, JJ Dated:12/01/2010

: Judgment

ORDER

(12.01.2010)

Following order of the Court was delivered by Sunil Kumar Sinha, J. (1) Being aggrieved with the award dated 28.11.2001 passed in Claim Case No. 24/99 by the Additional Motor Accident Claims Tribunal, Manendragarh, District Korea (C.G.), the insurer has filed this appeal u/s 173 of the Motor Vehicles Act.

(2) The facts, briefly stated, are as under:- Respondents 1 to 3/claimants filed a Claim Petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.21,40,000/- on account of death of deceased Shiv Ratan in the motor accident which took place on 17.6.99, when he was traveling as a pillion rider on scooter No. MP 27-C/5513 which was driven by respondent No.4. The scooter was insured with the appellant.

The Tribunal held that since the scooter was insured with the appellant and the accident took place on account of rash and negligent driving of the scooter by its driver, therefore, the appellant and respondents 4 & 5 were jointly and severally liable to pay the amount of compensation. The Tribunal awarded Rs.5,76,000/- as compensation to respondents 1 to 3/claimants on account of death of deceased Shiv Ratan who was husband of respondent No.1 and father of respondents 2 & 3. It further awarded interest at the rate of 6% per annum from the date of filing of the Claim Petition i.e. from 25.10.99 till its realization.

(3) Mr. R. Tripathi, learned counsel appearing on behalf of the appellant/insurer, raised only one point that the risk of the pillion rider was not covered under the policy issued to the owner and the Tribunal erred in law in fastening the liability on the appellant/insurer. Therefore, the appellant/insurer deserves to be exonerated. (4) On the other hand, Ms. Sharmila Singhai & Mr. Dilip Dubey, learned counsel appearing on behalf of respective respondents, opposed these arguments and supported the award passed by the Claims Tribunal.

(5) We have heard the learned counsel for the parties at length and have also perused the records of the claim case. (6) In United India Insurance Co. Ltd., Shimla -Vs- Tilak Singh & Others, AIR 2006 SC 1576, the Apex Court, referring to the decision of New India Assurance Co. Ltd. -Vs- Asha Rani and Others, (2003) 2 SCC 223 held vide Para-21 as under:-

"21. In our view, although the observations made in Asha Rani's case (supra) 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 company 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 gratuitous passengers." (7) If we look into the insurance policy (Ex.-D/2) filed in this case, it would appear that it was an Act policy and no extra premium was paid for covering the risk of the pillion rider. Therefore, in view of the terms of the policy, the insurance company would not be liable to pay compensation for the death of the deceased who was admittedly traveling as a pillion rider on the said scooter and the learned Claims Tribunal erred in law in holding that the appellant/insurer would also be jointly and severally liable to pay compensation for the death of the deceased in the said accident.

(8) For the foregoing reasons, the appeal filed by the Insurance Company is allowed. The Insurance Company is exonerated from the liability to pay compensation to respondents 1 to 3/claimants awarded by the Claims Tribunal. Respondents 4 & 5 (Bholanath Ghosh & Salim Khan) alone would be jointly and severally liable to pay compensation to respondents 1 to 3/claimants under the impugned award.

(9) The impugned award, thus, is modified to the extent indicated above.

(10) There shall be no order as to cost. CHIEF JUSTICE JUDGE