1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR * * * J U D G M E N T The New India Assurance Company Ltd. Vs. Smt. Laxmi Ben alias Lilla Ben & Ors. S.B.CIVIL MISC. APPEAL NO. 433/1996 AGAINST THE JUDGMENT AND AWARD DATED 18.5.1996 PASSED BY THE LEARNED JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, DUNGARPUR IN CASE No.139/92 (THE NEW INDIA ASSURANCE Co. Ltd. Vs. SMT. LAXMI BEN ALIAS LILLA BEN & ORS.) DATE OF JUDGMENT :: 30.4.2008 PRESENT HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. R.K. Mehta, for the appellant. Mr. Mridul Jain, for the respondents. :::: BY THE COURT : Deceased Praveen Bhai met an accident on 23.2.1992 at about 12.30 a.m. near Village Padali who was sitting as a pillion-rider on the motor cycle being driven by Pitambar came across the wire on the road and after loosing balance both fell down. Praveen Bhai succumbed to the injuries. The legal heirs of deceased including wife, his 2 children, mother and father filed a claim petition against the driver and owner of the motor cycle and also the New India Assurance Company before the learned Motor Accident Claims Tribunal, Dungarpur, who by judgment dated 18.5.1996 decided the claim petition and awarded Rs.1,59,000/- in favour of the petitioner-respondents No.1 to 7 and against the appellant-respondent No.8. Being aggrieved by the said judgment and award, the appellant preferred this appeal. Before the Tribunal, the respondent No.8 remained ex-parte. The appellant filed a reply and denied about all the allegations. The Tribunal on the basis of the pleadings framed three issues. The respondent-petitioner herself appeared in the evidence. None was produced on behalf of the appellant. The Tribunal after evaluating and analysing the entire evidence produced by the respondent, passed an award in favour of the respondents No. 1 to 7 and against the appellant and respondent No.8, against which the appeal has been preferred. Both the parties were heard and the file was gone through. 3 The only question about which the learned counsel for the appellants pleaded that since the deceased was a pillion-rider and there was no extra premium paid under the Act policy by the owner of the motor vehicle, the liability of the claim can not be fastened on the appellant as per statute. Learned counsel has cited the judgment of the Hon'ble Supreme Court United India Insurance Co. Ltd., Shimla Vs. Tilak Singh & Ors., reported in AIR 2006 SC 1576 and argued that since there was no extra premium paid by the owner of the motor vehicle, the claimants' liability cannot be saddled on them in absence of any condition of the insurance policy. Learned counsel for the respondent- petitioner could not show any adverse law on the subject. It has been finally decided by the Hon'ble Supreme Court by the judgment cited above that a gratuitous passengers carried in a private vehicle is not entitled for claim from the insurance company unless additional premium is paid by the insured. In the present case no additional premium was paid under the Act policy and the deceased was travelling as a pillion rider 4 in capacity of gratuitous passenger. The liability of the awarded claim cannot be fastened upon the appellant as there was no additional premium paid by the owner of the vehicle for the pillion rider, as the insurance policy did not cover the risk of death of gratuitous passenger. To this extent, the appeal filed by the appellant Insurance Company deserves to be allowed. Resultantly, the appeal filed by the appellant is allowed. The impugned judgment and award dated 18.5.1996 passed by the Tribunal is modified that the appellant Insurance Company is not liable for payment of compensation awarded by the Tribunal, but the award of compensation against the respondent No.8 and in favour of the respondents No. 1 to 7 is maintained. (BHANWAROO KHAN) J. RM/