THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.752 of 2006 & 4264 of 2008 COMMON JUDGMENT: These two appeals arise out of the order, dated 21.07.2005, in O.P.No.270 of 1995 on the file of the learned I Additional District Judge-cum-Chairman, Motor Vehicles Accidents Claims Tribunal, Ongole, wherein the claim of the respondents 1 to 6 herein, was allowed in part awarding compensation of Rs.1,55,300/- with interest @ 12% p.a. from the date of the petition till 30.03.2000 and @ 9% p.a. from 01.04.2000 till the date of deposit or realization. M.A.C.M.A.No.4264 of 2008 is filed by the insurer and M.A.C.M.A.No.752 of 2006 is filed by the owner of the offending vehicle. 2. Heard both sides. Perused the record. 3. As the two appeals arise out of the same order, they are heard together and are being disposed of by this common order. 4. Respondents 1 to 6 herein filed the claim application seeking compensation of Rs.3,00,000/- for the death of the deceased-Venkata Seshaiah, who died in a motor vehicle accident that occurred on 28.04.1995. 1st claimant is the wife; claimant Nos.2 and 3 are the children; claimant Nos.4 and 5 are the parents and claimant No.6 is the brother of the deceased. According to the claimants, the deceased was working as a driver in Pallava Granite company (appellant in M.A.C.M.A.No.752 of 2006 and owner of the vehicle) and that on 28.04.1995 he was travelling in the lorry bearing No.AP.27T 5155 belonging to the company and on account of the rash and negligent driving of the lorry by its driver the vehicle overturned resulting in multiple injuries to the deceased to which he succumbed in Government hospital, Ongole. It is stated that the deceased was aged 36 years and earning Rs.2000/- per month. The owner of the vehicle filed a counter stating that if at all the insurance company has to pay the compensation. The insurer filed a counter opposing the claim and denying their liability to pay the compensation. 5. During enquiry before the Tribunal, P.Ws.1 to 3 were examined and Exs.A1 to A8 were marked on behalf of the claimants. R.Ws.1 and 2 were examined and Exs.B.1 to B8 were marked on behalf of the appellants herein. Ex.C1-photostat copy of the postmortem certificate was also filed. 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 offending vehicle- lorry by its driver. The Tribunal awarded a total compensation of Rs.1,55,300/-, fixing joint and several liability on both the insured and also the insurer. Aggrieved by the same, the insured and insurer both preferred the present appeals. 7. Even according to the case of the claimants, the deceased was travelling in the lorry bearing No.27T-5155 as a passenger and it was driven by someone else. Though the deceased was also employed by the company as a driver, he was admittedly not the driver of the offending vehicle and he was merely travelling in the said vehicle. Thus, insofar as the said vehicle is concerned, the deceased was an unauthorized and gratuitous passenger. 8. In a catena of decisions, the apex Court held that the insurance company is not liable to pay compensation in respect of a gratuitous or unauthorized passenger in a goods vehicle. 9. In NEW INDIA ASSURANCE CO., LTD., V. ASHA RANI[1], the apex Court held as follows: “… Keeping in view the provisions of 1988 Act, it can be said that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in the goods vehicle, the insurer would not be liable therefor. …. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid.” It was further held as follows: “It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.” 10. I n NATIONAL INSURANCE CO.LTD. V. BOMMITHI SUBBAYAMMA AND OTHERS[2], it was held as follows: “Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people 11. In NEW INDIA ASSURANCE CO. LTD., V. RATTANI & ORS[3], it was held as follows: “We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants.” 12. I n NEW INDIA ASSURANCE CO.LTD., V. VEDWATI & OTHERS[4]’ the apex Court held as follows: “The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor”. 13. As the deceased was an unauthorized and gratuitous passenger in the goods vehicle-lorry, even as per the case of the claimants, the impugned order, fastening the joint and several liability on the insurer, is not sustainable in view of the principles laid down in the above decisions. It is stated that in pursuance of the interim order of this Court, the owner of the vehicle has deposited certain amount and that the same was also withdrawn by the claimants. Having regard to the fact that the claimants are poor and illiterate and that the 1st claimant is a widow and claimants 2 and 3 are the minor children of the deceased and that they have no other source of income, it is directed that the amount already withdrawn by the claimants in pursuance of the interim orders passed by this Court may not be recovered from the claimants. Claimants are at liberty to recover the balance amount of compensation from the owner of the vehicle. Claimants are however entitled for interest only @ 6% p.a. from the date of the petition in view of the recent decision of the apex Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION’ [5]. 14. In the result, appeals are disposed of accordingly. _______________________ G.V.SEETHAPATHY, J 02nd November, 2011 Tsy [1] 2003 ACJ 1 (SC) [2] 2005(2) ACJ 721 (SC) [3] I (2009) ACC 422 [4] 2007(1) Decisions Today (SC) 387 [5] 2009 ACJ 1298