IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.896 of 2010 (O&M) Date of decision:07.12.2010 National Insurance Company Limited ....Appellant versus Surinder Dutt and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Vandanaa Malhotra, Advocate, for the appellant. Mr. J.S.Cooner, Advocate, for respondents 1 to 4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appeal is by the Insurance Company denying liability on the ground that the deceased was a gratuitous passenger and the liability is not covered under the terms of the policy. I have seen the terms of the policy and I find that it is a policy-A liability only and the limitation of liability prescribed under the policy is as per Motor Vehicles Act of 1988. There is no requirement of compulsory insurance for a passenger unless the risk is covered by payment of additional premium. 2. Learned counsel for the respondent refers to a judgment of the Hon'ble Supreme Court in Amrit Lal Sood and another Versus Kaushalya Devi Thapar and others-1998 ACJ 531, that dealt with the case of comprehensive policy and the Court found that gratuitous FAO No.896 of 2010 (O&M) - 2 - passenger was covered under the terms of comprehensive policy. We are not dealing with the case of comprehensive policy and, therefore, this decision does not apply. Learned counsel refers to the decision of the High Court of Rajasthan in National Insurance Company Limited Versus Nirmala Bai and others-2000 ACJ 932, to say that “any person” would include a passenger in a vehicle. I am of obliged to differ with the view by the Rajasthan High Court and I am of the view that the decision does not set out the correct law. This issue has been considered in at least two decisions which still hold the field. The earliest point of law making out a distinction between a passenger in a vehicle and a third party, is the decision of the Hon'ble Supreme Court in Pushpabai Purshottam Udeshi Versus Ranjit Ginning and Pressing Company- 1977 ACJ 343 (SC) that held that a passenger was not “any person”, who was required to be covered under the terms of the policy. The decision was in the context of the Motor Vehicles Act of 1939 and the law has not changed till now. This was also dealt with in another case by the Hon'ble Supreme Court while considering whether a pillion rider was a third party in United India Insurance Company Limited, Shimla Versus Tilak Singh and others-2006(3) RCR (Civil) 168. This decision also reaffirms the principle of what was laid down earlier in Pushpabai's case where Pushpabai was specifically cited and approved. The said decision also makes reference to Amrit Lal Sood and makes a distinction of inapplicability to a situation where it is only an Act policy. The liability of the insurer cannot, therefore, be attached for a claim arising even of the deceased was a passenger in a private vehicle. The FAO No.896 of 2010 (O&M) - 3 - liability could be fastened only on the owner of the vehicle, who was also the insured. The award of the Tribunal is modified to make the right of enforcement of claim to avail only against the owner and the liability cast on the insurer is set aside. 3. At the time when the appeal was filed and notice was issued, the Insurance Company had been directed to deposit the entire amount. If the amount has not been withdrawn already, it shall not be permitted to be withdrawn. If, on the other hand, it has been withdrawn by the claimants, a right of recovery for the insurer shall avail only against the owner of the vehicle and not against the claimants. The amount of Rs.25,000/- which was directed to be deposited shall be permitted to be withdrawn. 4. The appeal is allowed to the above extent. (K.KANNAN) JUDGE 07.12.2010 sanjeev