HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO M.A.C.M.A. No.3274 OF 2011 JUDGMENT: The appeal is filed against the order in O.P.No.1248 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge (II Fast Track Court) at Nalgonda, questioning the liability. 2. A claim for compensation of Rs.75,000/- was made for the injuries received by the petitioner in a motor accident. The appellant herein has taken a plea that the petitioner was a gratuitous passenger and therefore, the Insurance Company is not liable to pay the same. The Tribunal after considering the evidence on record has found that the Insurance Company is not liable to pay the compensation. But, however, the Tribunal has directed the appellant to pay the compensation first and recover the same from the owner of the vehicle and granted a sum of Rs.32,000/-. 3. The point for consideration is whether the Insurance Company is liable to pay the compensation? 4. POINT: It is not in dispute that in the judgment reported in New India Assurance Company Vs. Asha Rani[1], it has been held by the Supreme Court that so far as the gratuitous passengers are concerned, the Insurance Company is not liable to pay the amount. But, however, i n National Insurance Co., Ltd., Vs. Cholleti Bharatamma & Others[2], it was held that when there is no liability to pay the compensation the question of pay and recover does not arise and in the above decision, the judgment in National Insurance Company Ltd., Vs. Baljit Kaur ((2004) 2 SCC 1), which was relied on by the lower Tribunal, is also considered. In view of the above circumstances, the Insurance Company cannot be directed to pay and recover. 5. Accordingly, the appeal is allowed. But, however, if any amount has been deposited by the Insurance Company and received by the claimant, it shall be recovered from the owner of the vehicle. If the amount has not withdrawn after the deposit, the Insurance Company is entitled to receive the same and the claimant can proceed with against the owner of the vehicle. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:15.12.2011 INL [1] 2003(1) ACJ 1 [2] 2007(7) Supreme 265