1 fa52 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.52 OF 2001 Naveed Ali Solkar & Ors. ...Appellants vs. Rupali Upendra Savekar & anr. ...Respondents Mr.S.M.Dange for the appellants Mr.Bakul Bhosale i/b Mr.S.B.Shetye for the respondent nos.1 and 2 CORAM : A.S.OKA,J. DATE : NOVEMBER 18, 2011 ORAL JUDGMENT: 1 The submissions were heard before the vacation. On 14th October 2011, the Appeal was adjourned for Judgment. 2 the appellants are the opponents in the claim petition filed by the respondents under section 166 of the Motor Vehicles Act,1988. Compensation was claimed on account of death of one Upendra who died in motor accident on 14th December 1998. 3 According to the case of the respondents, on 14th December 1998, the deceased was proceedings from village Nachane to Ratnagiri along with the first appellant. The first appellant was driving the scooter on which the deceased was the pillion rider. According to the case of the respondents, due to negligent driving on the part of the first appellant, the scooter slipped, as a result, the 2 fa52 deceased sustained serious injuries. While the deceased was being taken to Kolhapur, he succumbed to injuries. The second appellant is the owner of the scooter and at the relevant time, the scooter was insured with the third appellant. The claim petition was contested by the first appellant by filing a written statement. Even the second appellant contested the claim by filing the written statement. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the scooter on the part of the first appellant. The tribunal proceeded to grant compensation of Rs. 3,96,000/- with interest thereon at the rate of 12% per annum. However, the Tribunal passed an Award only against the third appellant and not against the first and second appellants. 4 When the appeal was called out for final hearing on 5th July 2011, Mr.Dange the learned counsel for the third appellant pointed out that he has filed a Vakalatnama only for third appellant and Mr.M.G.Barve, Advocate continued to represent the first and second appellants. Shri Dange relied upon the decision of the Apex Court in case of Oriental Insurance Company Ltd. Vs. Sudhakaran K.V. And others [(2008) 7 SCC 428). His submission is that the insurer is not liable to pay compensation in case of pillion rider of two wheeler and the liability of the insurer is covered only when there is an additional cover provided under the contract of insurance. He pointed out that no such additional cover was provided and therefore, the third appellant was not liable. 3 fa52 5 Paragraph 7 of the order dated 15th July 2011 passed by this Court reads thus : 7 In view of the findings of the Tribunal, prima-facie, I am of the view that by exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure,1908, the Appellant Nos.1 and 2 will have to be held liable to pay compensation to the Respondents. Since this Court proposes to exercise the powers under Rule 33 of Order XLI of the said Code, the Appellant nos.1 and 2 will have to be heard. The learned counsel appearing for Appellant no.3 seeks time to take instructions whether he wants to represent the Appellant nos.1 and 2 as well. 6 On 12th August 2011, when the appeal was called out, Shri Dange representing the third appellant was present. However, none appeared for the first and second appellants. To enable the Court to hear the first and second appellants, the appeal was adjourned to 26th September 2011. Even on that day, none appeared for the first and second appellants. Even on 14th October 2011, none appeared for the first and second appellants. 7 Thus, as far as first two appellants are concerned, the appeal will have to be dismissed as none has appeared for them, though the appeal was adjourned repeatedly. 8 As far as the third appellant is concerned, a 4 fa52 reliance is placed on the aforesaid decision of the Apex Court in case of Oriental Insurance Company Ltd. (supra). In paragraph 25 of the said decision, the Apex Court has held thus : 25.The law which emerges from the said decisions is; (i) the liability of the insurance company in a case of this nature is not extended to a pillion-rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk; (ii) the legal obligation arising under section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion-rider; (iii) the pillion- rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle. 9 In the present case, a copy of the policy of insurance has been exhibited as exh.38 which does not indicate that the liability of the pillion rider was covered by the policy. Thus, in view of the decision of the Apex Court, the third appellant is not liable. 10 Perusal of the Judgment of the Tribunal shows that the first issue was framed on the negligence of the first appellant. After discussing the evidence the said issue has been answered against the first appellant by recording a categorical finding that the accident occurred due to negligence on the part 5 fa52 of the first appellant. There is no dispute that on the relevant date, the second appellant was the owner of the scooter. However, in the operative part of the Judgment, the learned Member of the Tribunal has held only the third appellant liable to pay compensation. This is obviously an inadvertant error which can be certainly corrected by exercising power under Rule 33 of Order XLI of the Code of Civil Procedure,1908. As pointed out earlier, order dated 15th July 2011 and 12th August 2011 passed by this Court specifically records that this Court was inclined to pass Award by exercising the power under Rule 33 of Order XLI of the said Code as against the first and second appellants. However, none has appeared for them. As far as the respondents are concerned, the learned counsel for the respondents could not show any material on record to indicate that by payment of extra premium, the liability of the pillion rider was covered. 11 Hence, I pass the following order : i) The appeal stands dismissed as far as the first and second appellants are concerned. ii)The appeal is allowed as far as third appellant is concerned and the impugned Judgment and Award stands set aside as against the third appellant. iii)Impugned Judgment and an an Award is modified by directing that there shall be Award against the first and second appellants (first and second opponents to the claim petition) in the sum of Rs.3,96,000/- with interest and costs as directed by the impugned Judgment and Award. 6 fa52 iv)Time of three months is granted to the first and second appellants to deposit the amount payable under the impugned Award. v) Appeal is disposed of on above terms with no order as to costs. JUDGE