THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.92 OF 2011 JUDGMENT: This appeal is directed against the order, dated 12.10.2010, in M.V.O.P.No.573 of 2006 on the file of the learned Additional Motor Accident Claims Tribunal-cum- Family Court, S.P.S.R. Nellore, wherein the claim of the respondents 1 to 5 herein, was allowed in part awarding compensation of Rs.4,29,500/- with interest @ 7.5% p.a. from the date of the petition. 2. Heard learned counsel for the appellant and the learned counsel for the respondents 1 to 5. None appeared for the 6th respondent though served with notice. Perused the record. 3. Respondents 1 to 5 herein filed the claim application seeking compensation of Rs.5,70,000/- for the death of the deceased-Gundavarapu Venkatrami Reddy, who died in a motor vehicle accident that occurred on 18.01.2004. According to the claimants, on that day, the deceased and one Kunam Ravindra Reddy boarded a lorry bearing No.AP 31U 2849 at Ongole to go to Kavali and on the way, one Syed Khadar Basha boarded the lorry at Ulavapadu and when the vehicle reached the outskirts of Chagellu village, on account of the rash and negligent driving of the vehicle by its driver, the said Ravindra Reddy and Khadar Basha died on the spot and the deceased and the cleaner of the lorry received grievous injuries and immediately they were shifted to Government hospital, Kavali for treatment. Later the deceased was shifted to Vijaya hospital, Nellore where he was inpatient for three days and from there to Vijaya Health Centre, Madras where he was inpatient upto 05.02.2004 and succumbed to the injuries on the same day. A case in Cr.No.5 of 2004 was registered against the driver of the lorry. According to the claimants, the deceased was doing cultivation and earning Rs.3000/- per month. 4. 6th respondent herein-owner of the vehicle was set ex parte. Appellant-insurer filed a counter opposing the claim and denying their liability, inter alia, on the ground that the deceased was a gratuitous passenger and the policy does not cover the risk in respect of such person and therefore the appellant-insurer is not liable for payment of compensation. 5. During the enquiry, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked on behalf of the respondents herein. R.W.1 was examined and Ex.B1- copy of the policy 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 Tribunal further held that the claimants are entitled for payment of compensation of Rs.4,29,500/- with interest @ 7.5% p.a. The Tribunal further directed that the appellant- insurer is jointly and severally liable to pay the compensation. Aggrieved by the same, appellant-insurer filed the present appeal. The finding recorded by the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver is not seriously challenged, as also the quantum of compensation awarded. The main contention of the appellant-insurer is that as the deceased was admittedly a gratuitous passenger, travelling in the lorry, appellant-insurer is not liable to pay compensation as the policy-Ex.B1 does not cover the risk of such person. 7. Even in the claim application, it is averred that on that day the deceased boarded the lorry at Ongole to go to Kavali. Admittedly, the deceased was not accompanying any goods in the said vehicle. He was only a midway passenger, who boarded the lorry at Ongole to get down at Kavali. In Ex.A1-First Information Report; EX.A2-inquest report and Ex.A4-charge sheet also, it is stated that the deceased boarded the lorry as a passenger. As seen from the charge sheet, the lorry was proceeding from Vijayawada to Bangalore with plywood and some agricultural plastic pipes and the deceased boarded the vehicle as a midway passenger to travel from Ongole to Kavali. Admittedly, the policy-Ex.B1 does not cover the risk of any passenger in a goods vehicle. The lorry is admittedly a non-transport goods vehicle and the deceased was travelling as an unauthorized passenger, whose risk is not covered by the policy-Ex.B1. 8. In a catena of decisions, the apex Court held that the insurance company is not liable to pay compensation in respect of gratuitous or unauthorized passenger in a goods vehicle 9. In NEW INDIA ASSURANCE CO., LTD., V. ASHA RANI[1], the apex Court held as follows: “… Keeping in view the provisions of 1988 Act, it can be said 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 the goods vehicle, the insurer would not be liable therefor. …. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid.” It was further held as follows: “It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.” 10. In NATIONAL INSURANCE CO.LTD. VS. BOMMITHI SUBBAYAMMA AND OTHERS[2], it was held as follows: “Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people 11. In NEW INDIA ASSURANCE CO. LTD., V. RATTANI & ORS[3], it was held as follows: “We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants.” 12. In NEW INDIA ASSURANCE CO.LTD., VS. VEDWATI & OTHERS[4]’ the apex Court held as follows: “The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor”. 13. In view of the principles laid down in the above decisions and in view of the fact that the deceased was admittedly unauthorized gratuitous passenger travelling in a goods vehicle, whose risk is not covered by the policy- Ex.B1, the impugned award, fastening the liability on the appellant-insurer, is held unsustainable and the same is accordingly set aside insofar as the appellant-insurer is concerned. Claimants are however at liberty to recover the compensation amount awarded by the Tribunal from the owner of the vehicle. Appellant-insurer is entitled for refund of the amount deposited by them in pursuance of the interim order, dated 04.02.2011. 14. In the result, appeal is allowed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 22nd September, 2011. Tsy [1] 2003 ACJ 1 (SC) [2] 2005(2) ACJ 721 (SC) [3] I (2009) ACC 422 [4] 2007(1) Decisions Today (SC) 387