THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.203 OF 2003 DATED:04-12-2009 Between: National Insurance Company Limited, Rep., by its Divisional Manager, Kakinada. ..... APPELLANT And Bhavisetti Satyavathi & 3 others. .....RESPONDENTS JUDGMENT: This appeal is directed against the order, dated 04-02-2000, in M.V.O.P.No.561 of 1996 on the file of the Motor Vehicle Accidents Claims Tribunal, Rajahmundry, wherein the claim of the respondents 1 and 2 was allowed in part awarding compensation of Rs.1,00,000/- with interest @ 10% p.a. from the date of the petition. 2. Heard learned counsel appearing for the appellant. None appears for the respondents. Perused the record. 3. Respondents 1 and 2 herein filed the claim application seeking compensation of Rs.1,00,000/- on account of the death of the deceased-Bhavisetti Subbarao, who died in a motor vehicle accident that occurred on 15-05-1995. 1st claimant is the wife and the 2nd claimant is the son of the deceased. According to the claimants, on that day, the deceased along with pickle jars was travelling in a lorry bearing No.AP 31/T/9177 from Itchapuram, paying the freight charges and that when the lorry reached Tallapalem bridge near Kasimkota, on account of the rash and negligent driving the vehicle dashed against a tree and the deceased who was sitting in the cabin sustained grievous head injury and died on the spot. It is stated that the deceased was doing business in pickles and was aged 52 years by the date of the accident. 4. The driver and owner of the offending vehicle remained ex parte. Appellant-insurer filed counter opposing the claim and denying their liability to pay compensation, inter alia, on the ground that the deceased was unauthorized gratuitous passenger on a goods vehicle. 5. During the enquiry, P.W.1 was examined and Exs.A1 to A3 were marked on behalf of the claimants. R.W.1 was examined and Ex.B.1 was marked on behalf of the appellant-insurer. 6. 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 lorry by its driver. The said finding is not seriously challenged in this appeal. The Tribunal further held that the claimants are entitled for a total compensation of Rs.1,00,000/-. The quantum of compensation awarded by the Tribunal is also not seriously disputed. 7. The only contention raised by the learned counsel for the appellant is that no liability can be fastened on the appellant-insurer for the payment of compensation as the deceased was admittedly travelling as unauthorized passenger in the lorry, which is a goods vehicle, and the risk in respect of such person is not covered by the policy. 8. While fastening the joint and several liability on the appellant-insurer the Tribunal followed the decision of the apex Court in NEW INDIA ASSURANCE CO. LTD., v. SATPAL SINGH AND OTHERS[1]. It is not disputed that subsequently the said decision has been overruled and in NEW INDIA ASSURANCE CO. LTD., v. ASHA RANI[2] the apex Court held that the insurance company cannot be made liable pertaining to compensation in the case of death or injury in respect of an unauthorized and gratuitous passenger travelling in a goods vehicle and contrary to the terms and conditions of the policy. 9. The above principle was reiterated by the apex Court i n UNITED INDIA INSURANCE CO. LTD., v. TILAK SINGH AND OTHERS[3]; and NATIONAL INSURANCE CO. LTD v. RATTANI & ORS[4]. The evidence on record clearly established that the deceased boarded the lorry as a midway passenger along with several others at Itchapuram. The fact that he was carrying few pickle jars along with him does not alter the situation nor does it enable the claimants to contend that the deceased was accompanying any goods in the lorry as owner thereof. It is not the case where the deceased engaged the lorry for transportation of goods and was accompanying such goods as owner thereof. He was only a midway passenger who boarded the lorry along with some pickle jars. The deceased is therefore unauthorized passenger in a goods vehicle whose risk is not covered by the policy at all. 10. In view of the principles laid down by the apex Court in the above decisions, no liability can be fastened on the appellant-insurer in respect of the risk of unauthorized passenger in a goods vehicle whose risk is not covered by the policy. The impugned award passed by the Tribunal insofar as it fastens liability on the appellant- insurer is held liable to be set aside and the same is accordingly set aside. It is open to the appellant to recover the amount awarded from the owner of the vehicle. 11. In the result, the appeal is allowed as stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 04th December, 2009 Tsy [1] 2000(1) ACC 1 (SC) [2] 2003 ACJ 1 (SC) [3] 2006 ACJ 1441 [4] I (2009) ACC 417 (SC)