IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO NO.5189/2008 Date of Decision:27.4.2009. Sunita and others ..........Appellants Versus Kishori Lal and another ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Arun Yadav,Advocate for the appellants. JASWANT SINGH,J Appellants-claimants are in appeal against the award dated 22.10.2008 passed by the learned Motor Accident Claims Tribunal,Rewari (for short the Tribunal) whereby the claim petition filed by them, initially under Section 163 and finally entertained by the learned Tribunal as one under Section 166 of the Motor Vehicles Act,1988 (for short the Act), seeking compensation to the tune of Rs.10 lacs on account of death of Raj Pal in a motor vehicular accident that took place on 12.6.2002, has been dismissed. It is averred that on 12.6.2002 deceased Raj Pal was riding the pillion of motorcycle No.HR-36-C-4867(hereinafter referred to as the offending vehicle) owned and driven by Kishori Lal respondent no.1. When they were crossing National Highway at Saban Chowk, an Indica car came from the Jaipur side and there was a collision between the said two vehicles as a result of which deceased Raj Pal and Kishori Lal fell down. They were firstly rushed to Civil Hospital, Bawal and then to Civil Hospital,Rewari, but unfortunately deceased Raj Pal breathed his last while being taken to Civil Hospital Rewari. FIR No.47 dated 12.6.2002 was FAO NO.5189/2008 2 registered at PS Bawal under Sections 279, 337,304-A IPC. With these averments appellants-claimants filed a claim petition against the owner-cum-driver of the offending vehicle as well as its Insurer. The respondent no.1 (owner and driver of the offending vehicle) was proceeded against ex parte. Respondent no.2-i.e. Insurer of the vehicle resisted the claim on various counts. On the pleadings of the parties issues were framed. Parties led evidence in support of their respective pleas. The learned Tribunal after hearing both sides dismissed the claim petition. Hence the present appeal. Heard learned counsel for the appellants and perused the record. The claim petition was originally filed under Section 163 of the Act and pleadings were made in accordance with the provisions of Section 163-A of the Act. Thereafter an application was moved by the claimants to treat the petition as one under Section 166 of the Act. Keeping in view the monthly income of the deceased claimed to be Rs.6229.95 and words “rash and negligent” in para 24 of the petition, counsel for the claimants-appellants was asked as to under which provision of the Act the petition should be treated. Since counsel failed to exercise his option, the learned Tribunal keeping in view the legal provisions that claim petition is not maintainable under both the provisions i.e. 163-A and 166 of the Act, treated the claim petition as one under Section 166 of the Act. For succeeding in a claim petition under Section 166 of the Act, the claimants were required to prove negligence on the part of the driver of the offending vehicle (i.e. motorcycle on which the deceased was riding as a pillion rider). A perusal of the impugned award shows that in order to prove negligence on the part of respondent no.1 (driver of the offending vehicle) claimants examined one Mahender Singh PW3, who proved FIR Ex.P5, which was authored FAO NO.5189/2008 3 by him. As per contents of the FIR, it was case of the Mahender Singh PW3 that deceased Raj Pal (nephew of Mahender Singh) and Kishori Lal-respondent no.1 (driver of the offending vehicle) before taking turn towards Bawal at Saban Chowk signalled by hand but the driver of the Indica car bearing registration no.PB-3C- 4234, who was driving the said vehicle in a rash and negligent manner came and hit the motorcycle (offending vehicle). Thus, as per FIR, it is rash and negligent driving on the part of the driver of the Indica Car which resulted into the accident. On the other hand while appearing as PW3 Mahender Singh stated that on 12.6.2002 at about 9.45 pm, when he was present at Saban Chowk on National Highway No.8, Kishori Lal and Raj Pal were on their motorcycle being driven by Kishori Lal, who took a sudden turn, without giving any signal, towards his right side in order to cross the National Highway as a result of which the Indica car coming from Jaipur side struck against the motorcycle. From a perusal of the two separate versions given by PW3 Mahender Singh PW3, it is amply clear that his testimony is neither here nor there. He is blowing hot and cold in the same breath. While in the FIR he blamed the driver of the Indica car as responsible for causing the accident, whereas while appearing as PW-3 he took a somersault to point the accusing finger towards Kishori Lal, driver of the offending motorcycle. On the basis of such contradictory statements, I am of the considered opinion, that the learned Tribunal rightly rejected the claim petition on the ground that no negligence was proved on the part of the driver of the offending motorcycle. Secondly, for the arguments sake even if it presumed that FIR was lodged in haste and could not be a substitute for exhaustive version of the occurrence narrated by PW3 Mahender Singh, even then claimants-appellants are not entitled to claim compensation from the owner of the motorcycle. As a pillion FAO NO.5189/2008 4 rider the status of the deceased would be that of a gratuitous passenger. The claimants-appellants failed to produce Insurance policy of the offending vehicle on record to show that the liability of the insurance company-respondent no.2 was of such nature so as to to cover deceased pillion rider. Their Lordships of the Hon'ble Supreme Court in Oriental Insurance Co.Ltd. v. Sudhakaran K.V. And others, 2008 ACJ 2045 have held that pillion rider on a two-wheeler cannot be treated as a third party and legal obligation under Section 147 of the Act cannot be extended to cover injury or death of a pillion rider. For the reasons stated above,finding no illegality in the impugned award the appeal is hereby dismissed. No costs. 27.4.2009. (Jaswant Singh) joshi Judge