Bombay High Court
United India Insurance Co. Ltd vs Archana Sanjay Sanap And Others on 6 May, 2024
2024:BHC-AUG:9694
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FA 2541.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2541 OF 2013
United India Insurance Co. Ltd.,
Throughi it's Divisional Manager and authorised
representative & Signatory, Ahmednagar
Divisional Office,
Kisan Kranti Building, Ahmednagar,
Dist. Ahmednagar.
.. Appellant
(Ori. Opponent No.2)
VERSUS
1. Smt. Archana Sanjay Sanap,
Age 30 years, Occ. Nil.
2. Miss Payal Sanjay Sanap
Age major, Occ. Nil
through Natural Guardian Res. No.1 - Mother
Respondent Nos. 1 and 2
R/o. Dharangaon, Taluka Kopargaon,
Dist. Ahmednagar.
3. Rajaram Bhaguji Sanap
Age 68 years, Occ. Labour.
4. Janabagi Rajaram Sanap
Age 66 years, Occ. Nil.
Res. Nos. 3 to 4 : R/o. Mukhed, Tal, Yeola,
Dist. Nashik.
5. Sachin Gopinath Pawar
Age major, Occ. Fitter,
R/o. Murshatpur, Tal. Kopargaon,
Dist. Ahmednagar.
.. Respondents
( No.1 to 4 Ori. Claimants
No.5 - Ori. Opp. No.1)
Mr. A.B. Gatne, Advocate for the appellant
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FA 2541.13.odt
Mr. A.S. Gandhi, Adv. For respondent No.1.
Respondent No.2 under guardianship of respondent No.1
Respondent Nos. 3 to 5 served.
CORAM : S.G. CHAPALGAONKAR, J.
RESERVED ON : 18th APRIL, 2024.
PRONOUNCED ON : 6th MAY, 2024.
JUDGMENT :
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1. The appellant - original respondent No.2/insurer impugns
the judgment and award dated 23.1.2013 passed by the Motor Accident
Claims Tribunal, Kopargoan in MACP No. 100 OF 2005.
2. Brief facts giving rise to the present appeal are narrated as
under :-
Late Sanjay was proceeding as a pillion rider on motorcycle
bearing registration NO. MH-15/V-947. His friend Dadasaheb was riding
the motorcycle. At that time a jeep bearing Registration MH-16/F 5287
came from opposite direction and collided with the motorcycle. In said
accident, riders of the motorcycle fatal suffered injuries.
3. The motorcycle in question was owned by respondent No.5
and insured with the appellant at the time of accident. Respondent Nos.
1 to 4 - dependents of deceased Sanjay instituted a claim under Section
163A of the Motor Vehicles Act, seeking compensation of Rs. 4,85,000/-
from owner and insurer of the motorcycle.
4. The claim was contested by the appellant/insurer by raising
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FA 2541.13.odt
various defences. However, the Tribunal, after recording evidence on
behalf of the claimants, allowed the claim petition, directing owner and
insurer of the motorcycle to pay compensation of Rs. 4,42,000/-
alongwith interest @ 7.5% p.a. to the claimants, under the impugned
award dated 23.1.2013.
5. Mr. Gatne, learned advocate for the insurer would submit
that the admittedly, late Sanjay was a pillion rider of the motorcycle
insured with the appellant. The insurance policy was "liability only
policy" issued in terms of Section 147 of the Motor Vehicles Act. The risk
of pillion rider was not covered under such policy. However, the Tribunal
erroneously assumed liability of the insurer and passed an award,
holding the owner and insurer of the motorcycle jointly and severally
liable to pay the compensation. He invited attention of this Court to the
following judgments :-
[I] Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and others.
AIR 2008 SC 2729
[ii] National Insurance C. Ltd. Vs. Balkrishnan (2013) 1 SCC 731
Relying upon aforesaid judgments, he contends that the
statutory scheme under section 163A of the Motor Vehicles Act does not
contemplate to cover the risk of pillion rider of the motorcycle. He
would, therefore, urge to allow the appeal and set aside the award as
against the appellant-insurer.
6. Mr. Amol S. Gandhi, learned advocate for the respondents-
claimants supports the award contending that no specific defence has
been raised in the written statement filed by the insurer. The claim has
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FA 2541.13.odt
been filed under Section 163A of the Motor Vehicles Act. The insurer can
not avoid the liability, when the motorcycle was insured at the time of
accident.
7. Having considered the submissions advanced by learned
advocates appearing for the respective parties, the only point that arises
for consideration in this appeal is,
"whether in the facts of the case, respondent No.2 insurer
can be made liable to pay compensation in terms of insurance contract,
in respect of insured motorcycle ?".
8. Deceased Sanjay was admittedly traveling as a pillion rider
on the motorcycle at the time of accident. His friend Dadasaheb was
riding the motorcycle. Perusal of the insurance policy shows that it is
titled as "motorcycle/scooter liability only policy". The schedule of
premium depicts that the basic third party risk is covered and
additionally, personal accident cover to "Owner-Driver" is extended for
Rs. 1 Lakh. The contents of the insurance policy are not disputed by the
parties.
9. The Supreme Court of India in the case of United India
Insurance Co. Ltd. Shimla Vs. Tilak Singh and others reported in (2006)4
SCC 404, while interpreting the provisions of Section 147 of the Motor
Vehicles Act in a claim arising out of death of pillion rider of motorcycle,
extended application of the law laid down in the case of "New India
Assurance Co. Ltd. vs. Asha Rani and others reported in (2003)2 SCC
223, as regards to term 'Third Party' within meaning of provisions of Act
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FA 2541.13.odt
of 1988 and observed as under :-
"21. In our view, although the observations made in Asha
Rani Case were in connection with carrying passengers in a
goods vehicle, the same would apply in equal force to
gratuitous passengers in any other vehicle also. Thus, we
must uphold the contention of the appellant Insurance
Company that it owned no liability towards the injuries
suffered by 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 passenger."
10. Similarly, the issue has been considered in a subsequent
judgment in the case of Oriental Insurance Company Ltd. Vs.
Sudhakaran K.V. reported in AIR 2009 SC 2729 and the Supreme Court
reiterated the legal position in the following words :-
"19. The law which emerges from the said decisions is, (I)
the liability of the insurance company in a case of this nature
is not extended to a pillion rider of the motor vehicle unless
the requisite amount of premium is paid for covering his/her
risk; (ii) the legal obligation arising under Section 147 of the
Act cannot be extended to an injury or death of the owner of
vehicle or the pillion rider; (iii) the pillion rider in a two
wheeler was not to be treated as a third party when the
accident has taken place owing to rash and negligent riding
of the scooter and not on the part of the driver of another
vehicle."
11. Applying the aforesaid principles of law espoused by the
Supreme Court of India to the facts of the present case, the directions
given by the Tribunal under the impugned judgment and award fixing
liability to pay the compensation on shoulders of appellant insurer
cannot be countenanced.
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FA 2541.13.odt
12. Although Mr. Gandhi, learned advocate for
respondents/claimants endeavors to point out inadequate pleadings in
the written statement of the insurer, he could not persuade this court to
assume liability of insurer in wake of crystallized legal position as
discussed above. It is trite that law need not be pleaded. If the liability
of the insurer is based on statutory provisions and such statutory
provisions do not extend liability towards pillion rider of the two-
wheeler, mere lacuna in the pleadings cannot be dragged to extend
insurance cover beyond statutory scheme and grant benefit in favour of
the claimants. The liability of the insurer will have to be fixed within the
parameters of the statutory provisions, mandating specified insurance
cover in tune with Section 147 of M.V. Act 1988 or additional contract
extending such cover. The copy of insurance policy admitted in evidence
before Tribunal is bereft to cover risk of pillion rider. In that view of the
matter, the impugned award can not be sustained. Hence the following
order :-
ORDER
[A] First appeal is allowed;
[b] Impugned judgment and award dated 23.1.2013 passed by
the Motor Accident Claims Tribunal, Kopargaon in MACP No. 100 of
2005 is hereby quashed and set aside.
[c] The amount of compensation, if any, deposited by the
appellant/insurance company be refunded alongwith interest accrued
thereon.
[S.G.CHAPALGAONKAR]
JUDGE
grt/-
