THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.2432 OF 2006 DATED: 20-11-2009 Between: The New India Assurance Company, Rep., by its Branch Manager, Srikakulam Branch, Srikakulam. ..... APPELLANT And Dola Mutyalu & 3 others. .....RESPONDENTS JUDGMENT: This appeal is directed against the order, dated 14-08-2001, in O.P.No.11 of 1998 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-District Judge, Srikakulam, 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 and the learned counsel appearing 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 daughter-Dola Alivelu Mangaveni, who died in a motor vehicle accident that occurred on 01-12-1996. According to the claimants, the deceased along with others was travelling in a lorry bearing No.APS 6676 and on account of the rash and negligent driving of its driver the vehicle overturned resulting in the death of the deceased. 4. The owner of the vehicle remained ex parte. The insurer filed a counter opposing the claim and denying the liability, inter alia, on the ground that the deceased was unauthorized passenger in the goods vehicle. Therefore, the insurer is not liable to pay the compensation. 5. During enquiry, the 2nd respondent-claimant was examined as P.W.1 and Exs.A1 to 5 were marked. No oral or documentary evidence was adduced by the 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 compensation of Rs.1,00,000/-. Accordingly, award was passed for the said amount with interest @ 10% p.a. from the date of the petition fastening joint and several liability on the owner and insurer. Aggrieved by the same, the insurer filed the present appeal. 7. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver is not seriously disputed. The appellant-insurer mainly contends that they are not liable to pay the compensation as the deceased was unauthorized passenger in a goods vehicle. The said contention was raised before the Tribunal also. The Tribunal, however, following the decision in NEW INDIA ASSURANCE CO. LTD., v. SATPAL SINGH AND OTHERS[1], held that the insurer is also liable because the policy of the insurance covering the risk of a third party is not required to exclude the gratuitous passengers. 8. It is not disputed that subsequently the decision in Satpal Singh’s case was overruled by the apex Court. In NEW INDIA ASSURANCE CO. LTD., v. ASHA RANI[2]; UNITED INDIA INSURANCE CO. LTD., v. TILAK SINGH AND OTHERS[3]; and NATIONAL INSURANCE CO. LTD v. RATTANI & ORS[4], the apex Court held that the insurance company is not liable to pay the compensation in respect of the risk of a person travelling as a gratuitous and unauthorized passenger in a goods vehicle. 9. In view of the principles laid down in the above decisions and as the policy of insurance does not cover the risk of any gratuitous passenger travelling in a goods vehicle, no liability can be fastened on the appellant-insurer for payment of compensation. The impugned award to the extent of fastening the liability on the appellant, is therefore set aside. It is stated that in pursuance of the interim order, dated 09-08-2002, the appellant-insurer has deposited the entire amount of the award with interest and costs and by the same order the claimants were permitted to withdraw half of the decretal amount with interest and costs. 10. Learned counsel for the claimants would submit that the claimants may be permitted to withdraw the balance amount also as they are poor and helpless victims having lost their daughter in the accident. In view of the finding that the risk in respect of a gratuitous passenger is not covered by the policy at all and that no liability can be fastened on the appellant-insurer for payment of any compensation in respect of such gratuitous passenger in a goods vehicle, it is not permissible to allow the claimants to withdraw the balance amount lying in the deposit. However, in view of the fact that the claimants are poor villagers, it is directed that the amount already withdrawn by them in pursuance of the interim order may not be recovered from them. However, it is open to the appellant to recover the said amount 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 20th November, 2009 Tsy [1] 2000(1) ACC 1 (SC) [2] 2003 ACJ 1 (SC) [3] 2006 ACJ 1441 [4] I (2009) ACC 417 (SC)