1. By way of this appeal, the appellant-original opponent No.5 has challenged the judgement and award dated 07.05.2009 passed by the Motor Accident Claims Tribunal(Auxi), Fast Track Court No.1, Surendranagar, in M.A.C.P. No. 285 of 2000, whereby the tribunal has awarded compensation in the sum of Rs.3,10,000/- to the claimants with interest at the rate of 9% per annum from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that on 17.02.2000 one Bhupatbhai and Ramnikhbhai were going on a motor cycle. Bhupatbhai was the pillion rider in the said motorcycle. When they reached near village Vastadi. At that time one truck bearing registration No.GJ-13-T-6177 came from the wrong side and dashed the said motorcycle. As a result of the said accident, they expired. Therefore, the legal heirs of deceased Bhupatbhai filed claim petition being M.A.C.P. No. 285 of 2000 before the Tribunal for compensation.
2.1. The tribunal after hearing learned advocates for the parties decided the claim petition and passed the award as stated hereinabove, against which the present appeal is preferred by the appellant-Insurance Company.
3. Though served none appears for the respondents. Learned advocate for the appellant has submitted that the Tribunal has committed an error in holding the Insurance Company from making payment of compensation. The deceased was the pillion rider and as per the Act Policy the risk of pillion rider is not covered. In support of his contention he relied upon the decision of the Apex Court in the case of General Manager, United Insurance Co. Ltd. Vs. M. Laxmi and Ors, reported in AIR 2009 SC 626.
4. I have heard learned advocate appearing for the appellant and perused the materials on record. It is not in dispute that the deceased was the pillion rider and the policy in question issued as per the provisions of M.V. Act, 1988. Section 147 of the said Act, provides that the risk of pillion rider is not covered under the Act policy. It also appears from the record that the insurer has not paid any additional premium to cover the risk of such pillion rider. I have also perused the decision of the Apex Court in the case of General Manager, United Insurance Co. Ltd. Vs. M. Laxmi and Ors.(supra). Paragraph Nos. 7, 8 and 9 of the said decision reproduced as under:-
"7.
In New India Assurance Co. Ltd. Vs. Asha Rani and Ors. (2003 (2) SCC
223), it has been rioted as follows:-
"Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage".
In view of the changes in the relevant provision in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. " a third party". Keeping in view of the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
Furthermore, sub-clause (I) of Clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place".
8. In United India Assurance Co. Ltd. Shimla Vs. Tilak Singh and Ors, (2006(4) SCC 404) it has been noted as follows:-
"
In our view, although the observations made in Asha Rani case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant-Insurance Company that it owed no liability towards the injuries suffered by the deceased-Rejinder 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."
9. In view of what has been stated by this Court in Asha Rani and Tilak Singh case (supra), the order of the High Court is clearly unsustainable and is set aside and that of the MACT is restored."
5. In view of the above observation of the Apex Court, the present appeal is required to be allowed. Therefore, the present appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed only qua the extent of imposition of liability on the appellant-Insurance Company to make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company along with interest and cost, if any, and it will be open for the claimants to recover the said amount from the owner of the vehicle. The appeal stands disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] pawan Top