1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2699/2008 NEW INDIA ASSURANCE CO.LTD. Versus PADMINIBAI RAMKISHAN RAJAS AND ORS WITH CIVIL APPLICATION NO. 1488/2008 AND CIVIL APPLICATION NO.1268/2009 ... Shri Ajit Kadethankar, Advocate for the appellant. Shri Sachin Deshmukh, Advocate for respondents 1 and 2. Respondent 3 : Served. ... CORAM : R.K.DESHPANDE, J. Dated : August 5, 2009 PER COURT :- 1. This appeal is preferred by the Insurance Company, challenging the judgment and award dt.22.2.2005 passed by the Motor Accident Claims Tribunal, Hingoli, in M.A.C.P. No.50 of 2001 holding the appellant insurance company, along with owner of the vehicle, liable to pay jointly and severally, compensation of Rs.4,50,500/- to the claimants with interest at the rate of 6 2 per cent per annum from the date of petition till its realisation. 2. Respondents 1 and 2 are the original claimants. Respondent No. 1 is mother and respondent No.2 is brother of deceased Gajanan. Respondent No.3 is the owner of the vehicle. Respondents 1 and 2 (original claimants) filed a claim petition alleging therein that on 21.8.2000, at about noon time, deceased Gajanan, along with his friends had been to Aundha Naganath for offering prayers. They had gone on motor cycle i.e. Hero Honda with registration No. MH-30-F-6445. While they were on the way to Washim from Aundha Naganath, they met with an accident near Hingoli naka at Washim. At that time friend of deceased, namely; Kiran, was driving the motor cycle and deceased was the pillion rider. Said motor cycle dashed the water tank located by the side of the road. As a result of the said dash, deceased fell down and sustained head injury. He ultimately succumbed to the said injury on 22.8.2000. The claimants, therefore, claimed compensation of Rs.7,00,000/- from the owner of the motor cycle (respondent No.3 herein) and appellant insurance company - respondent No.2 in the claim petition. 3. The appellant filed its written statement raising a defence in the specific terms that though the vehicle was insured, at the relevant time, with the insurance company, the policy did not cover the risk of pillion rider. It was a third party policy and pillion rider cannot be treated as a third party. There was no extra premium paid in respect of the pillion rider and hence the insurance company was not liable to pay the compensation. Apart from this, a defence was also raised that the driver of the motor cycle was not holding a valid driving license. 3 4. The Tribunal framed issues 4 and 5, which are relevant and material for deciding the controversy involved in this appeal. They are reproduced herein below:- “(4). Does the Respondent No.2 prove that the driver of the aforesaid motor cycle bearing registration No.MH-30-F-6445 was not holding valid and effective driving license at the time of accident? (5). Whether the risk of the pillion rider was covered under the insurance policy of the aforesaid vehicle bearing registration No.MH-30-F-6445?” 5. Both the aforesaid issues are answered in affirmative, holding that the driver of the motor cycle was not holding a valid driving licence at the time of accident and that the risk of the pillion rider was covered under the insurance policy of the vehicle. However, no reasons are recorded in support of these findings. There is absolutely no discussion on both these issues in the entire judgment of the Tribunal. The Tribunal held the appellant and respondent No.3 jointly and severally liable to pay Rs.4,50,500/- with interest at the rate of 6 per cent per annum from the date of the petition till its realisation. This order is under challenge in the present appeal. 6. Shri Kadethankar, Learned counsel for the appellant contends that a specific defence was raised on two aspects i.e.the driver of the motor cycle was not holding a valid driving license and that it was a thirty party insurance, which did not cover the pillion rider. Learned counsel further contends that there are no reasons recorded while recording the findings on both these issues by the Tribunal and this by itself is enough to set aside the 4 impugned order. Learned counsel further contends that in view of the decision of the apex Court in the matter of Oriental Insurance Co.Ltd. Vs. Sudhakaran K.V. [AIR 2008 SC 2729], the pillion rider is not covered by the third party insurance policy and on that count, insurance company was liable to be exonerated. 7. Learned counsel for the respondent further relying upon the decision of the learned Single Judge of the Delhi High Court in the case of Ramesh Chand Tripathi Vs.Lily Joshi [2008 ACJ 785], contended that by notification dt.25.3.1977 issued by the Tariff Advisory Committee, all existing policies should be deemed to incorporate the amendment that the compensation in respect of the pillion rider would be covered by the policy. Learned counsel submits that on the basis of this, the Delhi High Court has held that the pillion rider is covered under the Act policy and hence the insurance company is liable to indemnify the insurer. 8. I have gone through the judgment of the apex Court in the case of Oriental Insurance Vs. Sudhakaran (supra), which was dealing with the question, as to whether the pillion rider on a scooter would be a third party, within the meaning of section 147 of the Motor Vehicles Act, 1988. After perusing the terms of contract of insurance, the apex Court has held that it was a contract covering third party risk and not the risk of the owner or pillion rider. It was held that an exception in the contract of insurance has been made by covering the risk of the driver of the vehicle. It was further held that the contract of insurance did not cover the owner of the vehicle and certainly not the pillion rider. In paragraph No.19 of the judgment, the apex Court has held as under :- 5 “ 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 12 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. The learned counsel for the appellant has pointed out from the insurance policy that no premium to cover the risk of pillion rider was paid. In view of that, the question raised stands concluded by the aforesaid decision of the apex Court. 10. The submission of learned counsel for the appellant that the claim is based upon the judgment of the learned Single Judge of the Delhi High Court, which refers to certain notification issued by the Tariff Advisory Committee. It raises a factual dispute. For the purpose of taking advantage of the notification, there has to be a pleading and the concerned document is required to be placed on record. The issue involves an adjudication over the disputed questions of facts not only regarding applicability of the notification but also the powers under which the notification has been issued so also the subsistence of notification as on the date of the occurrence of the accident. All these questions have not been raised, no pleadings are made, no documents are placed on record and therefore, in absence of such material being placed on record, it is not possible to consider the issue at this stage. The judgment of the Delhi High Court proceeds on the applicability of the notification and 6 hence the same is of no help to the respondents / claimants. 11. In view of the above, the appeal succeeds. It is accordingly allowed. The judgment and award dt.22.2.2005 passed by the Motor Accident Claims Tribunal, Hingoli in MACP No.50 of 2001 is quashed and set aside to the extent it holds the appellant – Insurance Company liable, jointly and severally, to pay the compensation of Rs.4,50,500/- with interest at the rate of 6 per cent per annum. There shall, however, be no order as to costs. 12. Learned counsel for the appellant submits that on 14.1.2008, amount of Rs.25,000/- has been paid. Thereafter, on 19.3.2008, amount of Rs. 6,24,097/- has also been deposited. The appellant would be entitled to withdrawn the entire amount, which is deposited in this Court. 13. In view of the fact that the appeal is allowed, Civil Applications do not survive and accordingly stand disposed of with no order as to costs. (R.K.DESHPANDE,J.) ... akl