IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.3673 OF 2002. Date:19.11.2009. Between:- The Oriental Insurance Co.Ltd., rep.by its Divisional Manager, Kurnool. ..Appellant/R-2 And B.Lakshmi and others .. Respondents/Petitioners and R-1 JUDGMENT:- This appeal is directed against the order dated 09.12.1998 passed in M.V.O.P.No.52 of 1996 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal – cum- IV Additional District Judge, Kurnool, wherein the claim of respondent Nos.1 to 5 herein was allowed in part awarding compensation of Rs.62,000/- with interest at 12% p.a. from the date of the petition. Heard the learned counsel for the appellant. None appears for the respondents though served with notices. Perused the records. Respondent Nos.1 to 5 herein filed the claim application seeking compensation of Rs.1,00,000/- on account of the death of the deceased-Nagi Reddy, who died in a motor vehicle accident that occurred on 07.03.1995. Claimant No.1 is the wife and claimant Nos.2 to 5 are the children of the deceased. According to them, on that day, the deceased went on coolie work in the tractor and when the vehicle reached Ramappa temple of Gudekal village of Yemmiganur taluk, the deceased fell down on account of rash and negligent driving of the tractor and sustained head injury and died on the spot. The owner of the tractor remained exparte. The appellant-insurer filed a counter opposing the claim and denying their liability to pay the compensation inter alia on the ground that the deceased was a passenger in a tractor and his risk is not covered by the policy and no premium is paid to cover the risk of either coolie or a passenger. During the enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked on behalf of the claimants. R.W.1 was examined on behalf of the appellant-insurer and Ex.B-1 was marked. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the tractor by its driver. The Tribunal further held that the deceased was the passenger in the tractor and therefore, the claimants are entitled for a total compensation of Rs.50,000/- under no fault liability besides a sum of Rs.10,000/- towards consortium and Rs.2,000/- towards funeral expenses. The Tribunal also held that the appellant-insurer cannot escape from its liability to pay the compensation under no fault liability. Accordingly, Award was passed for the said amount of Rs.62,000/- with interest at 12% p.a. fastening joint and several liability against the appellant-insurer under no fault liability. Aggrieved by the same, the present appeal is filed by the insurer. The finding of the tribunal that the accident occurred due to the rash and negligent driving of the tractor by its driver is not seriously disputed. The main contention of the learned counsel for the appellant is that as the deceased was found to be unauthorized passenger in the tractor, the appellant-insurer cannot be fastened with liability to pay compensation under any circumstances. Ex.A-1-F.I.R. shows that the deceased was traveling as a passenger in the tractor. The tribunal also gave a finding that the deceased was a passenger in the tractor. Admittedly, the tractor is not a passenger vehicle and no premium is paid covering the risk of any passenger or coolie. Ex.B-1 shows that additional premium is paid only in respect of driver of the tractor. The deceased, who was unauthorized passenger in the tractor, cannot be treated as a third party. The risk in respect of the deceased was therefore, not covered by the policy-Ex.B-1. When that is so, the appellant-insurer cannot be fastened with any liability for payment of any compensation in view of the Judgments laid down by the Apex Court. I n New India Assurance Co.Ltd. Vs. Asha Rani[1], National Insurance Co.Ltd. Vs. Bommithi Subbhayamma and others[2] and National Insurance Co.Ltd. Vs. Rattani and Others[3], the Apex Court held that the insurer cannot be made liable for payment of compensation in case of death or injury of a person, who is unauthorized and gratuitous passenger in the vehicle and whose risk is not covered by the terms and conditions of the policy. The impugned Award fastening joint and several liability on the appellant-insurer is, therefore, not sustainable and the same is modified accordingly, by exonerating the appellant-insurer from any liability to pay the compensation. It is stated that in pursuance of the interim order dated 19.07.1999 passed in C.M.P.No.14529 of 1999, the claimants were permitted to withdraw sum of Rs.25,000/- already deposited. Having regard to the fact that the claimants are poor villagers, the amount already withdrawn may not be recovered from them. It is, however, open to the appellant-insurer to recover the said amount from the owner of the vehicle. In the result, subject to the above, the appeal is allowed. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J November 19, 2009 AMD [1] 2003 ACJ 1 (SC) [2] 2005 ACJ 721 [3] I (2009) ACC 417 (SC)