This appeal is at the instance of Insurance Company in a proceedings under the Motor Vehicles Act, 1939 and is directed against an award dated 29th April 1991 passed by the Motor Accident Claims Tribunal [Aux] at Bhavnagar in MACP No. 164 of 1984 thereby disposing of the proceedings for compensation by awarding a sum of Rs.2,00,000/- with interest at 12% per annum from the date of petition till realization and holding that the Insurance Company, the owner of the offending vehicle and the driver thereof are jointly and severally liable to pay the amount. Being dissatisfied, the Insurance Company has come up with the present appeal.
Mr. Tailor, the learned advocate appearing on behalf of the Insurance Company has raised a pure question of law in this appeal as to the liability of his client, the Insurance Company, to pay the amount when admittedly the victim was a pillion rider of the two- wheeler, a Hero Magestic Moped, which was involved in the accident.
There is no dispute that in the case before us, no other vehicle was involved and according to the claimant, the accident occurred due to negligent driving on the part of the driver of the Moped on which the victim was travelling as a pillion rider.
It appears that the aforesaid point has now been settled by the Supreme Court in the case of ORIENTAL INSURANCE CO. LTD. vs. SUDHAKARAN K.V. AND OTHERS reported in 2008 ACJ 2045 and also in the case of GENERAL MANAGER, UNITED INDUSRANCE CO. LTD. vs. M. LAXMI reported in AIR 2009 SC 626 wherein it has been held that a pillion rider on a two-wheeler cannot be treated as a third-party in respect of insurer of the selfsame vehicle and the legal obligation of the insurer under section 147 of the Act cannot be extended to the injury or death of a pillion rider.
In view of the aforesaid decision of the Supreme Court in the above cases, the learned Tribunal below committed substantial error of law in making the Insurance Company jointly and severally liable to pay the amount of compensation along with driver and owner of the vehicle.
At this stage, Mr. Soni, learned advocate appearing on behalf of the claimant, strenuously contended before me that I should, by following the decision of a learned Single Judge of this Court in the case of ICICI LOMBARD G.I.C. LTD. vs. V.H. VADHER reported in 2009 (4) GLR 3426 and also in the case of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. v. DF.N. NAI reported in 2008 (5) GLR 3694, at least direct the Insurance Company to make payment to the claimant, and give liberty to the Insurance Company to recover the said amount from the owner of the vehicle.
In the case of ICICI LOMBARD G.I.C. LTD. [supra], the learned Single Judge of this Court was considering a case where the policy issued by the Insurance Company was a comprehensive policy. In that context, the learned Single Judge rejected the contentions of the learned advocate for the appellant that the risk of pillion rider was not covered by the Insurance Policy.
In the case before us, undisputedly the policy is not a comprehensive one but is limited to third-party liability only. Therefore, the said decision cannot have any application to the facts of the present case.
In the other case of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. (supra), the learned Single Judge, by relying upon the decision of the Supreme Court in the case of ORIENTAL INSURANCE CO. LTD. v. ZAHARULNISHA reported in 2008 AIR SCW 3252 held that in case of liability of the insurer for third-party risks, statute raises a legal fiction that insurer would be deemed to be a judgment- debtor in respect of liability and the violation of the provisions of the Act may result in absolving insurers, but same may not necessarily hold good in case of a third-party as a statutory one.
With great respect to the said learned Single Judge, I am unable to follow the said decision as a precedent for the simple reason that His Lordship has totally overlooked the decision of the Supreme Court in the case of ORIENTAL INSURANCE CO. LTD. v. SUDHAKARAN K.V. AND OTHERS [supra] where it was held that pillion rider on a two-wheeler cannot be treated as a third-party and legal obligation under section 147 of the Act cannot be extended to the injury or death of a pillion rider.
Moreover, in the case of ORIENTAL INSURANCE CO. LTD. v. ZAHARULNISHA [supra], relied upon by the learned Single Judge, the Supreme Court, in passing a direction to the Insurance Company to pay the amount and then to recover the same from the owner followed the principle laid down by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. v. BALJIT KAUR AND OTHERS reported in 2004 (2) SCC 1 and DEDDAPPA v. NATIONAL INSURANCE CO. LTD. reported in (2008) 2 SCC 595.
Going through those two decisions, I find that the Supreme Court, in those two cases, passed the direction for payment in exercise of powers conferred on it under Article 142 of the Constitution of India. Therefore, in my opinion, the discretion exercised by the Supreme Court by taking aid of Article 142 of the Constitution of India not being available to this Court, the learned Single Judge was not justified in passing such direction and the said decision of the learned Single Judge cannot be held to be a good law.
On consideration of the entire materials on record, I, therefore, modify the impugned award only to the extent that the same should be recoverable from the owner or driver of the vehicle, and not from the Insurance Company. I make it clear that I have not gone into any other question and the portions of the impugned judgment would remain untouched.
This Court is given to understand that as a condition precedent of stay of execution of the award, the appellant Insurance Company had deposited the entire amount awarded before the Tribunal below and the same is kept in a Fixed Deposit. The Tribunal is directed to release the entire amount with accrued interest to the appellant Insurance Company within two months from today.
With the above observations, this appeal is allowed. In the facts and circumstances of the case, however, there will be no order as to costs.
Registry is directed to return the Record & Proceedings to the Tribunal forthwith.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew