National Insurance Co. Ltd., ... vs Khursid Ahmed Sakoor Ahmed & 5 Ors
2017 Latest Caselaw 3323 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                               FIRST APPEAL NO.1013 OF 2008

              National Insurance Company Ltd.
              Through its Branch Manager and 
              having its Divisional Office at 
              Paul Complex, Ajni Square,
              Nagpur.                                                            ....... APPELLANT

                         ...V E R S U S...

 1]           Khurshid Ahmed s/o Sakoor Ahmed 
              Aged about 59 years,

 2]           Mrs. Shamsunisa w/o Khurshid Ahmed 
              Aged about 50 years,
               
 3]           Miss. Shaista Anjum d/o Khurshid Ahmed
              Aged about 25 years,

 4]           Mr. Mohammed Irfan Khurshid Ahmed
              Aged about 22 years, 

              All residents of Kazipura, Near Bashir Bakery 
              Juna Jaikhana, Central Avenue
              Nagpur.                   ..... (Original Claimants)

 5]           Mohammed Iqbal s/o Mohammed Ibrahim
              Age Major and 
              Resident of Kazipura, Near Bashir Bakery 
              Juna Jaikhana, Central Avenue
              Nagpur. (Original respondent no.1).

 6]        Pramod Agrawal 
           Age Major and                       -(Abated as per 
           Resident of 95, Mall Road, Kamptee    Order dt. 26-08-14)
           District-Nagpur 
          (Original Respondent No.3).          ...... RESPONDENTS




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          Shri. Shrikant Borkar, Advocate for Appellant.
          None appeared for respondents. 
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            CORAM :  SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

            DATE    :  19 th
                             JUNE, 2017.

 ORAL JUDGMENT

The only issue raised in this appeal, which is

preferred by the Insurance Company against the judgment and

order dated 22.08.2006 passed by Member, Motor Accident

Claims Tribunal, Nagpur in Claim Petition No. 892/1997, is

whether under Act Policy the risk of pillion rider is covered so as

to make Insurance Company liable to pay the compensation

amount to the claimant jointly and severally alongwith owner of

the vehicle.

2] For deciding this appeal, the facts which are

necessary can be summarised as follows:-

The deceased by name Jameel Amhed was a pillion

rider on Bajaj Scooter bearing registration No. MH-31/L-1109,

who died on 8.7.1997 at about 10.00 p.m. The said scooter met

with an accident. It was a hit and run case. Jeep was driven by

respondent no.1/respondent no.5 and found to be owned by

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respondent no.6 against whom the appeal is abated. The scooter

was insured with the appellant/Insurance Company. The offence

in such case came to be registered against the offending vehicle at

Wadi Police Station vide Crime no. 113/97 . The respondent Nos.

1 to 4 who are the legal heirs of deceased Jameel filed a petition

before the Tribunal claiming compensation of Rs.2,94,000/- on

the ground that deceased was serving in Vidarbha Petroleum and

was earning Rs.1600/- per month.

3] This petition came to be resisted by respondent no.5

and also the present appellant. A specific defence was taken by the

present appellant in its written statement that the insurance policy

of Bajaj scooter was only 'Act Policy' i.e. policy for act liability

which covers the risk of third party only under the provisions of

Maharashtra Vehicles Act. It was stated that under the Act Policy,

the risk of the deceased who was pillion rider on the scooter was

not covered, as he was not a third party and hence,

appellant/insurance company was not liable to pay any amount of

compensation.

4] Before the tribunal, the father of late Jamil examined

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himself and also produced on record the FIR, spot panchnama and

other documents. On appreciation of the said evidence, the

tribunal held the appellant/Insurance Company and the owner of

the scooter both jointly and severally liable to pay the

compensation of Rs. 1,45,000/- to the claimant, with future

interest at the rate of 8% per annum from the date of filing of

petition till realization of the whole amount.

5] As stated above, the only issue raised for

consideration by learned counsel for the appellant in this appeal is

whether the learned tribunal has committed an error in holding

appellant jointly and severally liable along with owner of the

scooter to pay the compensation amount to the claimant and I

find much substance and merit in the said submission. As per the

admitted fact on record, deceased was proceeding on the scooter

as pillion rider. This fact is admitted by his father, who is

claimant. This fact is also reflected in the FIR and police papers.

As regards the policy under which the scooter was insured with

the appellant, its copy is produced on record of the trial Court at

Exh.46 and it clearly shows that it was Act policy and hence,

covering the liability of third party only. The law is clearly well

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settled that pillion rider cannot be a third party and, therefore so

far as the death of pillion rider is concerned, it is held in the

landmarked decision of the Hon'ble Supreme Court in the case of

New India Assurance Company Vs. Asha Rani and others

reported in (2003) 2 SCC 223, that in the case of gratuitous

passengers the insurance coverage cannot be extended if it is act

policy. In the case of United India Insurance Co. Ltd., Shimala

Vs. Tilak Singh & Ors., reported in 2006 AIR SCW 1822, it was

held further that although the observations made in Asha Rani's

case 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.

6] Learned Counsel for the appellant has also placed

reliance in this respect on the judgment of Division Bench of this

Court in the case of New India Assurance Company Ltd. Vs.

Babasaheb Anna Mali and others, 2001(4) Mh.L.J. 562 wherein

it was observed as follows:-

"We, therefore, have no hesitation in holding that pillion rider of the motor cycle which was insured with the appellant was not covered under the policy of insurance which was admittedly third party policy.

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When the pillion rider of a motor cycle is not covered under the policy of insurance, obviously the insurer of the motor cycle could not have been saddled with the no fault liability under Section 92A even under the limited and restricted enquiry as laid down by the Apex Court in Shivaji D. Patil (supra). The learned Single Judge in the impugned Order particularly in paragraph 14 cannot be said to have rightly observed that some evidence shall have to be led by the insurance company to make out the case that it is not liable. Though the learned Single Judge extensively referred to judgment of the Apex Court in Shivaji D. Patil's case and rightly appreciated the ratio laid down thereunder but erred in applying it on the facts of the case when he observed that some evidence shall have to be led by insurance company to prove that it is not liable under the policy and thereby committed an error which deserves to be corrected by us. On the faceof the third party insurance policy when pillion rider is not covered, in claim of compensation made by the claimant for having sustained permanent disability while riding motor cycle as pillion rider which met with an accident, apparently insurance company is not liable and no further material was required to be seen at the stage of consideration of application under Section 92-A to find out whether insurer was liable or not. From the insurance policy it is not seen that any extra premium was paid for coverage of pillion rider".

Accordingly, the contention raised by Insurance

Company that it is not liable the deceased being a pillion rider and

the insurance policy being a statutory policy did not cover the risk

of death or bodily injury to gratuitous passenger, was accepted

and appeal was allowed and Award holding the Insurance

Company liable to pay the compensation was set aside.

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7] In the instant case also, having regard to the fact

which is uncontroverted that deceased was a pillion rider when

he met with an accident and having regard to the policy at Exh.46

which is statutory or Act only policy, it has to be held that risk of

the deceased was not covered under the said policy. There is no

evidence that any higher premium was paid under the said policy.

In such situation, appellant insurance company needs to be

absolved from the liability of paying compensation amount to the

claimant.

8] As a result, the appeal is allowed.

The impugned judgment and Award of tribunal is set

aside against appellant Insurance Company. It is held that

appellant is not liable to pay any amount of compensation to the

claimants and accordingly stands absolved from the said liability.

Rest of the judgment and award of the trial Court

stands confirmed as other respondents i.e. owner and driver of the

scooter have not challenged the same.

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As it is pointed out that appellant has already

deposited the entire amount of compensation, the appellant is

entitled to withdraw the said amount with interest accrued

thereon. If said amount is already withdrawn by the respondent-

claimants, the appellant is entitled to recover the same from the

claimants.

JUDGE

RGIngole