[Cites 5, Cited by 0]
Bombay High Court
Smt. Darshana Vasant Mukadam vs Vasant Kamlakar Mukadam And Anr. on 27 January, 2026
2026:BHC-AS:4061 FA-697-2022-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 697 OF 2022
WITH
INTERIM APPLICATION NO. 10288 OF 2022
IN
FIRST APPEAL NO. 697 OF 2022
IFFCO-TOKIO General Insurance Co. Ltd.,
Through its Authorized Representative
Sunny Bhandari, AFL House, Marol Maroshi
Road, 2nd Floor, Andheri (E) Mumbai
Also at
3rd Floor, Iffco Bhavan, 181, Waterfield Road
Next to Jammu & Kashmir Bank,
Bandra (West), Mubmai 400 050. ...Appellant
~ versus ~
1. Darshana Vasant Mukadam,
Aged 36 years, Occ: Nil
R/at. Plot No. 222/03, Room No. 102,
Teen Taki, Near Bal Sanskar Mandir,
Sector 19, Koper Khairane Goan,
Navi Mumbai 400 079.
2. Vasant Kamlakar Mukadam,
Age adult, Occu: Service,
R/at. Room No.3, Plot No. 222,
Opp. Bus Depot, Sector 19,
Koper Khairane. Navi Mumbai. ...Respondents
A PPEARANCES
For the Appellant Mr Rajesh Kanojia, i/b Res Juris.
For The Respondents Mr TJ Mendon.
CORAM : R. M. JOSHI, J.
Page 1 of 9
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RESERVED ON : 12TH JANUARY 2026.
PRONOUNCED ON : 27TH JANUARY 2026.
JUDGMENT:
1. This appeal takes exception to the Judgment and Award
dated 14th October 2021, passed in MACP No. 586 of 2017,
whereby death claim filed by the claimant came to be allowed,
with direction, to the opponents No. 1 and 2 jointly and severally,
to pay a compensation amount of Rs.7,48,103/- with interest at
the rate of 7% per annum from the date of filing of the Petition till
realization of the amount. In addition to the 7% of interest, penal
interest, at the rate of 8%, is also directed to be paid.
2. Learned counsel for the Appellant submits that the Tribunal
has committed error in granting compensation to the claimant in
ignorance of the fact that the deceased is son of the owner and
rider of the offending motorcycle. According to him, the impugned
judgment is contrary to the judgment of Hon'ble Supreme Court in
case of New India Assurance Company Ltd. vs. Sadanand Mukhi &
Ors.,1 wherein it is held that son of the owner of the insured
vehicle is not third party. It is his further submission that terms and
1 (2008) 17 S.C.R. 1313.
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conditions of the Insurance Policy in question do not cover the
liability of payment of compensation towards pillion rider. It is his
submission that additional premium has been paid only to cover
limited risk of owner/driver. He further argued that, in view of the
admitted fact herein that the deceased was pillion rider on the
motorcycle, which was rode by the owner/father of the deceased,
the deceased being not third party, the claimant would not be
entitled to receive any compensation arising out of the said
accident. On the point of penal interest, it is his submission that
the said order passed by the Tribunal is not sustainable in view of
the judgment of the Division Bench of this Court in case of New
India Assurance Company Limited Vs. Smt. Saira Imtiaz Lambe &
Ors. (FA No. 783 of 2015).
3. Learned counsel for the claimant supported the impugned
Judgment and Award by contending that irrespective of the fact
that the deceased is son of the owner and rider of the offending
motorcycle, his right to receive a compensation on the death is not
affected as the policy in the present case is not act policy, but is a
comprehensive policy. He drew attention of the Court to the
judgment of the Hon'ble Supreme Court, in case of New India
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Assurance Company Ltd. vs. Sadanand Mukhi & Ors2 Sadanand
Mukhi (supra) to argue that it is only in case of a act policy, the
third party would be entitled to receive compensation and since
the son of the owner, being not third party, may not be entitled to
receive composition in act policy. He drew attention of the court, to
the documentary evidence on record which indicates that the
policy in question issued by the Appellant/Insurer is not act policy,
but comprehensive policy. He also drew attention of the Court to
the order dated 2nd June, 1986, passed by Tariff Advisory
Committee, Bombay, wherein it is directed to the Insurer to cover
the death or bodily injuries to any person, including person
conveyed in, or on motorcycle, provided such person is not carried
for hire or rewards. It is his submission that it is not a case of the
Insurer before the tribunals, nor there is any evidence to indicate
that the deceased was carried for higher or reward and as such, the
question of non payment of compensation to the claimant does not
arise. To support his submissions, he placed reliance on following
judgments:-
(a) Oriental Insurance Co. Ltd. vs. Ajayakumar & Ors.3
2 (2008) 17 SCR 1313.
3 (1999) SCC OnLine Ker 291.
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(b) Royal Sundaram Alliance Insurance Co. Ltd. vs.
Meenakshi & Ors.4
(c) Mathew vs. Shaji Mathew & Anr.5
4. It is not a disputed fact that on 1st October 2017, deceased
Jignesh was a pillion rider on the motorcycle owned by his father,
that is the owner of motorcycle bearing registration No. MH-43-
AP-2820. It is also not in dispute that since the rider of the
motorcycle lost control and dashed to the road divider, pillion rider
fell down on the road and sustained injuries. He died in hospital
on 5th October 2017. Police had registered the offence against the
rider of the motorcycle for rash and negligent driving of the
motorcycle and being responsible for the death of pillion rider
therein.
5. The opponent No.1 owner of the motorcycle failed to cause
appearance before the Tribunal. The Insurer, however, filed Written
Statement at Exhibit 12. It is not disputed by the Insurer that
during the relevant period Insurer had issued a policy covering the
risk of the insured in respect of the offending motorcycle. Insurer
also claimed that the Insurer is not liable for payment of
compensation for the reason that the rider of the motorcycle was
4 2009 ACJ 2218.
5 2010 ACJ 322.
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not holding valid and effective license. No dispute has been made
by the Insurer with regard to the nature of insurance policy.
Similarly, right of the claimant to receive compensation has not
been denied on the basis of the fact that the deceased was son of
the owner and rider of the offending motorcycle.
6. Irrespective of the fact of the admission given by the Insurer
with regard to the Insurance Policy covering the risk of the
offending vehicle, the claimant placed on record the Insurance
Policy indicating terms and conditions thereof. Perusal of the said
policy indicates that the policy is not act policy, but is a
comprehensive policy. Once the policy is not act policy, question of
this Court going into the issue, as to whether the deceased was
third party or not, does not arise. It is pertinent to note that, in the
judgment in case of Sadanand Mukhii (Supra) the Hon'ble
Supreme Court was dealing with a case wherein there was an act
policy and not comprehensive policy. In the facts of the said case,
it was held that the Insurer is not liable to pay compensation as the
deceased son of the owner of the insured was not third party.
Since, in the instant case, the policy is package policy/
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comprehensive policy, with respect the same judgment of the
Hon'ble Supreme Court has no application to the present case.
7. Now question would arise, as to whether there would be
coverage of liability of pillion passenger in respect of death or
bodily injury caused to him. It would be relevant to take note of
the order dated 2nd June, 1986 of Tariff Advisory Committee, which
reads thus:-
"To:
All Regional Offices of:
1. National Insurance Co.Ltd., Calcutta.
2. The New India Assurance Co.Ltd.,Bombay.
3. The Oriental Insurance Co.Ltd., Delhi.
4. United India Insurance Co.Ltd. Madras.
Govt. Insc. Funds:
1. Maharashtra State- Bombay.
2. Gujarat State- Ahmedabad.
3. Kerala State -Trivandrum.
4. Karnataka State- Bangalore.
Re: Compensation to Pillion Riders
Insurers' attention is invited to Section
II(1) (a) of Standard Form for Motor
Cycle, Comprehensive Policy, Sheet 59 of
the IMT.
It has now been decided that the Standard
Motor Cycle Comprehensive Policy should cover
liability to Pillion Passengers treating them as
occupants in the Motor Cycle and provide
indemnity to such persons who/are not carried
for hire or reward.
Accordingly, Extra Benefit No.2 granting legal
liability to cover side car passengers will stand
deleted and Standard Cover under Section 2 (1)
(a) of the Policy are worded as under:-
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"Death or bodily injury to any
person including person
conveyed in or on the Motor
Cycle provided such person is not
carried for hire or a reward".
Insurers are requested to issue necessary instructions to their
Divisional Branch offices accordingly."
8. It is thus clear that since the time of the said order, in case
of a comprehensive policy, liability towards death or bodily injury
of a pillion passenger will be covered by the insurance policy,
treating him as occupant of the motorcycle. The only condition for
non payment would be that if such person is carried for hire or
reward, there would be no liability of the Insurer to pay
compensation. Thus, after the said order, the liability towards the
death or bodily injury caused to a pillion rider is covered in
Insurance Policy, which is not act policy. Thus, in the instant case,
the package policy covers the risk of the pillion rider, irrespective
of the fact, whether he is third party or otherwise. Since it is not
case of Insurer that deceased was carried on motorcycle for hire or
reward, question of denying liability of Insurer to pay
compensation does not arise. This court therefore finds no
substance in the challenge to the impugn Judgment and Award
sought to be raised by the Insurer.
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9. However, on the point of the penal interest, there is a
substance in the contention of the counsel for the Appellant/
Insurer that it was not open for the Tribunal to pass any order of
penal interest, which is contrary to the law settled by the Division
Bench of this Court in case of Smt. Sairo Imtiaz Lambe (Supra) and
hence cannot sustain.
10. In view of the above, I pass the following order:
ORDER
(a) The Appeal is partly allowed.
(b) The Order passed by the Tribunal in respect of the
penal interest of 8% per annum stands set aside.
(c) Rest of the order stands confirmed.
(d) R & P, if received, be sent back to the Tribunal.
11. In view of dismissal of the Appeal, pending Applications, if
any, stand disposed of.
(R. M. JOSHI, J.)
{
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