United India Insurance Company ... vs Shailendra Thakur
2022 Latest Caselaw 14925 MP

              IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR
                               BEFORE
              HON'BLE SHRI JUSTICE VIVEK AGARWAL
                   ON THE 15th OF NOVEMBER, 2022
                     MISC. APPEAL No. 3841 of 2022
BETWEEN:-
UNITED    INDIA    INSURANCE     COMPANY      LTD.
THROUGH DIVISIONAL MANAGER DIVISIONAL
OFFICE AT PARYAWAS BHAWAN ARERA HILLS
BHOPAL M.P.
(AS PER IMPUGNED AWARD)
OFFICE AT JABALPUR THROUGH INCHARGE TB
HUB   UNITED      INDIA   INSURANCE     CO.   LTD.
RAJKIRAN BUILDING FIRST FLOOR WRIGHT
TOWN JABALPUR (MADHYA PRADESH)
                                                     .....APPELLANT
(BY SHRI T. S. LAMBA - ADVOCATE)
AND

1.    SHAILENDRA     THAKUR     S/O    RAJKUMAR
SINGH, AGED ABOUT 38 YEARS

2.    MASTER VINAY SINGH S/O SHAILENDRA
SINGH, AGED ABOUT 2 YEARS, MINOR THROUGH
NATURAL     GUARDIAN      FATHER      SHAILENDRA
THAKUR

(BOTH RESIDENT OF - HOUSE NO.635, SHABRI
NAGAR, BHANPUR, TAHSIL HUZUR DISTRICT
BHOPAL (MADHYA PRADESH)
 3.      RAJESH RAJPUT S/O MANGAL SINGH R/O
BEHIND          RAILWAY            PARKING,            BAIRAGARH
BHOPAL (MADHYA PRADESH)
                                                                              .....RESPONDENTS
(SHRI NITIN GUPTA - ADVOCATE FOR RESPONDENTS No.1 AND 2.)
(SHRI RAVENDRA SHUKLA - ADVOCATE FOR RESPONDENT NO.3.)
--------------------------------------------------------------------------------------------------------
       This appeal coming on for orders this day, the court passed the following:
                                            ORDER

This appeal is filed by the Insurance Company being aggrieved of Award dated 1st April, 2022 passed by learned Third Additional Motor Accident Claims Tribunal, Bhopal in MACC No.449/2020.

2- It is submitted by the learned counsel for the appellant that admittedly deceased Smt. Mamta Singh was travelling on motorcycle MP 04 QD 3678 with the driver of the motorcycle Rajesh Rajput as a pillion rider. Accident took place when due to negligence of the driver of the motorcycle Mamta Singh had fallen down. She sustained grievous injuries. She was admitted to Civil Hospital, Bairagarh from where she was referred to Hamidia Hospital, Bhopal where she died during treatment on 06.01.2020. It is also submitted that since the policy under which offending motorcycle MP 04 QD 3678 was insured under the limited liability or 'act-only policy', therefore, in the light of the judgment of Supreme Court in case of National Insurance Company Ltd. vs Bala Krishnan and another 2013 ACJ 199, passenger risk is not covered. Further, it is submitted that policy is Exhibit D-1 and it is liability only policy i.e. it is not comprehensive policy. It is issued in Form 51 of Central Motor Vehicles Rules, 1989.

3- Shri Nitin Gupta, learned counsel for the claimants in his turn submits that he is placing reliance on the judgment of Madras High Court in United Insurance Company Ltd. vs. Abdul Majeeth & ors. decided on 25.11.2021 in CMA No.1029/2014, wherein, it is held that policy issued by the appellant is only an act policy and it does not cover the risk of pillion rider. It is held that the amount directed by the High Court to be deposited by the Company was withdrawn by the claimants and therefore, under such facts and circumstances, it is held that the Insurance Company is not entitled to recover the same from the claimants. It is open to the Insurance Company to recover the same from the third respondent-owner of the vehicle.

4- Taking this Court through the judgment of Madras High Court, it is submitted that 50% amount deposited by the Insurance Company be allowed to be withdrawn by the claimants.

5- Shri Ravendra Shukla, learned counsel for respondent No.3 places reliance on the judgment of Supreme Court in Mohana Krishnan S. vs. K.Balasubramaniyam & ors. (Special Leave to Appeal (C) No.3433/2020 - arising out of order dated 25.10.2019 in MACA No.204/2016 passed by the High Court of Kerala at Ernakulam); wherein it is held that in terms of the provisions contained in Section 149 of the Indian Motor Tariff Endorsement No.70, third party and pillion rider are how to be determined. In order to place the case before a Larger Bench to consider the question of law by an appropriate Bench on the ground that they are not in agreement with the two judgments of the Supreme Court reported in (2006) 4 SCC 404 and (2008) 7 SCC 428, wherein it is held that a pillion rider on a motorcycle is not a third party, therefore, the Insurance Company is not liable to indemnify the insured on account of the injuries or death of the pillion rider. 6- The question which is referred is whether the third party includes all other persons other than the insured, who is the first party and the insurer, who is the second party or not ?

7- However, for the present, law is well settled that unless premium is charged for a pillion rider, Insurance Company is required to be exonerated of its liability to pay compensation on account of injury/death to a third party which includes pillion rider.

8- Since the policy is 'Act-only' policy, Insurance Company has been erroneously not exonerated by the learned Tribunal. Therefore, Insurance Company is exonerated of its liability to make payment. Award will be recoverable exclusively from the owner of the offending vehicle in above terms.

9-        Appeal is allowed and disposed of.
10-       Record of the Tribunal be sent back.


                                                  (VIVEK AGARWAL)
                                                       JUDGE

anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2022.11.16
12:46:20 +05'30'