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.3339 of 2002. Date:11.11.2009. Between:- The New India Assurance Co. Ltd., rep.by its Divisional Office, Rajahmundry. ..Appellant/Respondent No.3 And Neelapala Sathemma and others .. Respondents JUDGMENT:- This appeal is directed against the order dated 15.10.2001 in O.P.No.530 of 1996 on the file of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Rajahmundry wherein the claim of respondent No.1 is allowed in part awarding compensation of Rs.75,000/- with interest at 9% p.a. from the date of registration of the O.P. i.e., 22.10.1996. Heard the learned counsel for the appellant. None appeared for the respondents. Perused the records. Respondent No.1 filed the claim application seeking compensation of Rs.1,50,000/- for the injuries sustained by her in a motor vehicle accident that occurred on 24.04.1994. According to her, on that day, she was waiting on the road side along with luggage i.e., 50 kgs of rice, one wooden cot, two wooden chairs and one wooden stool to go to Peddapuram and that as the passenger bus refused to carry the luggage, she opted to travel in the lorry and while proceeding in the lorry bearing No.AP 5T 7308 Tipper, the vehicle met with an accident and turned turtle on account of rash and negligent driving by its driver, due to which the petitioner sustained injuries. A case in Crime No.89 of 1994 was registered against the driver of the lorry. The owner of the lorry remained exparte. The appellant/insurer filed a counter opposing the claim and denying their liability inter alia on the ground that the claimant is unauthorized gratuitous passenger in the lorry, which is a goods vehicle and therefore, the insurer is not liable to pay the compensation. During the course of enquiry, the claimant was examined as P.W.1 and Exs.A-1 to A-4 were marked. No oral evidence was adduced on behalf of respondents and Ex.B-1-cpy of the insurance policy was marked. On a consideration of the evidence available on record, the Tribunal awarded compensation of Rs.75,000/- with interest at 9% p.a. Aggrieved by the same, the present appeal is filed by the insurer. As seen from the impugned order, the Tribunal fastened with joint and several liability on the appellant/insurer following the decision reported in New Insurance Company Vs. Satpal Sing[1] wherein it was held that an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type of class. The said decision has been over ruled. The Apex Court in a plethora of decisions held that the insurer would not be liable to pay compensation in respect of the risk to the owner of the goods or the representative of the owner accompanying goods traveling in a goods vehicle. In the Judgments reported in New India Assurance Co.Ltd. Vs. Asha Rani[2], National Insurance Co.Ltd. Vs. Bommithi Subbhayamma and others[3] and National Insurance Co.Ltd. Vs. Rattani and Others[4], 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. In the present case, the accident occurred on 24.04.1994, which was prior to the amendment. The insurer is not liable to pay any compensation in respect of any risk even to the owner or the representative of the owner incase of the accident that occurred prior to the amendment of the Act, which amendment came into force on 14.11.1994. Under those circumstances, the impugned Award fastening joint and several liability on the appellant/insurer for payment of compensation to the claimant, who was only a midway passenger and who boarded the lorry, a goods vehicle, along with some household articles, is not sustainable. The claimant is only an unauthorized gratuitous passenger in the lorry, which is a goods vehicle and the appellant/insurer is not liable to pay any compensation for any risk in respect of such person, in view of the principles laid down in the above decisions. Even assuming for a moment that the claimant was traveling in the lorry as owner accompanying the goods, still, there was no requirement to pay compensation on the part of the appellant/insurer, since the accident having taken place prior to the amendment of the Act. Thus viewed from any angle, the appellant/insurer is not liable to pay compensation. It is stated that by virtue of interim order dated 26.06.2002 in C.M.P.No.11967 of 2002, the appellant deposited half of the decretal amount and costs. By order dated 03.10.2002 in C.M.P.Nos.18614 and 11967 of 2002, the claimant was permitted to withdraw the deposited amount, without furnishing any security. Having regard to the fact that respondent No.1/claimant is a poor agricultural coolie, the amount already deposited and withdrawn by respondent No.1 may not be recovered by the appellant/insurer. It is open to the claimant to recover the balance amount from the owner of the vehicle. In the result, subject to the above direction, the appeal is allowed and the impugned Award dated 15.10.2001 is set aside in so far as the appellant/insurer is concerned. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 11th November, 2009 AMD [1] A.I.R.2000 Supreme Court at page 235 [2] 2003 ACJ 1 (SC) [3] 2005 ACJ 721 [4] I (2009) ACC 417 (SC)