The 3rd respondent in O.P.(MV) No.1653/2000 of the Motor Accident Claims Tribunal, Pathanamthitta has come up in appeal challenging that part of the award dated 15.06.2012, whereby the 3rd respondent insurance company was directed to deposit the award amount by permitting the 3rd respondent to realise the said amount from the insured who was the 2nd respondent in the OP.
2. The Tribunal has found that the insured who is the 1st respondent herein was a gratuitous passenger in a goods vehicle and therefore, he was not covered by an 'act only policy' as the one in this case. The said aspect is not under challenge. The registered owner has not challenged the award. The 1st respondent herein, who is the injured/ petitioner in the OP is not presently contesting. The limited question to be decided is whether the appellant can be directed to pay the amount and to recover it from the registered owner even when there was no coverage as per the policy conditions. Admittedly, the policy in question is an 'act only policy' and therefore, a gratuitous passenger is not covered by the said policy as no extra premium was paid for such coverage.
3. In National Insurance Company v. Balgjt Kaur [2004 (1) KLT 938(SC)] and United India Insurance Company Limited v. Tilak Singh and Others[(2006) 4 SCC 404] it was held that a gratuitous passenger is not covered by an 'act only policy' in case any extra premium for such special coverage is not paid. In National Insurance Company Ltd. v. Balan @ Balakrishnan and Others[2008 (1) KHC 202], it was held that in the case of an 'act only policy', there is no coverage for the gratuitous passenger of a private vehicle, and in such a case, the principle of pay and recovery also does not apply as the passenger in a private vehicle is not covered by the 'act only policy'. The provision to pay and recover arises only when there is some violation of policy conditions. When there is no coverage at all, the said provision does not come into play. Matters being so, that part of the award passed by the Tribunal is liable to be set aside.
4. In the result, this M.A.C.A. is allowed and that part of the award whereby the appellant was directed to pay and then recover the award amount from the insured, is hereby set aside. The award amount has to be recovered from the 1st respondent in the OP, who is the registered owner.
In case the part of the award amount deposited by the appellant before the Tribunal is not withdrawn, that amount has to be returned to the appellant. In case it is withdrawn, the appellant is hereby permitted to recover the said amount from the registered owner of the vehicle.
B.KEMAL PASHA, JUDGE ul/-
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