THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY M.A.C.M.A.Nos.928 & 930 of 2011 COMMON JUDGMENT: Common questions of fact and law arise in these two miscellaneous appeals filed under Section 173 of the Motor Vehicles Act. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to as arrayed in M.A.C.M.A.No.930 of 2011. The appellant is the owner of a motorcycle bearing No.AP 27 L 4602, insured with the 4th respondent. His son, by name, Annamaneni Srikanth, was a student of III-Year Engineering in Rao and Naidu Engineering College, Ongole. On 21.07.2007, Srikanth and his friend Neelala Ravi, the son of respondents 1 and 2, were proceeding from Vijayawada to Ongole. The Motorcycle hit a stationed Lorry, bearing No.AP 16 X 1069, owned by the 3rd respondent and insured with the 5th respondent, near Jonnathalli Petrol Bunk. Srikanth, who was driving the motorcycle, died instantly, and the pillion rider, Ravi, died in the hospital on 25.07.2007, while undergoing treatment. Respondents 1 and 2 filed M.V.O.P.No.1334 of 2007 before the Motor Accidents Claims Tribunal-cum-District Judge, Guntur, against the appellant herein, and respondents 3 to 5 claiming compensation of Rs.5,00,000/-. It was alleged that the appellant and respondents 3 and 4 are liable to pay the compensation, since the accident occurred on account of the rash and negligent driving on the part of the driver of the motorcycle. The 3rd respondent remained ex parte in the O.P. It’s insurer, the 4th respondent, filed written statement denying the claim, on the ground that accident occurred on account of the rash and negligent driving of the motorcycle. It was pleaded that since lorry owned by the 3rd respondent was parked, when the accident took place, no liability can be fastened against them. The appellant, as the 3rd respondent in the O.P., filed written statement taking the plea that the accident occurred on account of the improper and negligent parking of the lorry and that as the owner of the motorcycle, he is not liable to pay any compensation. The 5th respondent filed a written statement admitting the fact that the motorcycle is insured by them. They too pleaded that the accident occurred due to the negligence on the part of the driver of the lorry in parking the vehicle without any precautions. A further plea was raised to the effect that the insurer of the motorcycle cannot be held liable to pay compensation for the death of a pillion rider. Through its order, dated 03.10.2008, the Tribunal held that respondents 1 and 2 are entitled to be paid compensation of Rs.5,00,000/- but took the view that there was no negligence on the part of the driver of the lorry and in that view of the matter, respondents 3 and 5 herein, cannot be held liable to pay the compensation. So far as the 5th respondent i.e. the insurer of the motorcycle is concerned, the Tribunal took the view that a pillion rider is not covered by the policy. The result was that the appellant alone was held liable to pay the compensation. Feeling aggrieved by that, the appellant filed M.A.C.M.A.No.930 of 2011. The appellant and his wife, by name, Bharathi Devi filed O.P.No.27 of 2008 before the Motor Accidents Claims Tribunal-cum- VII Additional District Judge, Ongole, claiming a sum of Rs.10 lakhs as compensation, on account of the death of their son, Srikanth, against the driver, owner and insurer of the lorry bearing No. AP 16 X 1069. They pleaded that the accident occurred only on account of the negligent parking of the lorry and they are entitled to be paid the compensation. The O.P. was contested mainly by the insurer i.e. the 4th respondent herein. It is just repeated the plea raised in O.P.No.1334 of 2007, before the Motor Accidents Claims Tribunal-cum-District Judge, Guntur. The owner and driver of the lorry remained ex parte. Through its order, dated 02.03.2009, the Tribunal held that there was a composite negligence on the part of the driver of the motorcycle and driver of the lorry determined at 90% and 10%. After determining the compensation at Rs.10 lakhs, the owner and insurer of the lorry were held liable to pay a sum of Rs.1 lakh, to the extent of negligence, viz., 10%. The appellant and his wife filed MACMA.No.928 of 2011 for re-determination of the extent of negligence on the part of the driver of the lorry, for the accident. Learned counsel for the appellant submits that the view taken by the Tribunal in O.P.No.1334 of 2007 that respondents 3 and 5 cannot be held liable to pay the compensation is opposed to law and the purport of the policy. He contends that the two Tribunals that dealt with the two O.Ps., filed in relation to the same accident, have taken divergent views, as to the liability of the owner and insurer of the parked lorry. He submits that the driver of the lorry did not take necessary precautions, and thereby, contributed substantially to the occurrence of accident. Learned counsel further submits that the Insurance Regulatory and Development Authority, laid down the guidelines to the effect that a policy, in respect of a two- wheeler, shall cover the liability towards a pillion rider and that the same was not taken into account. Learned counsel appearing for the respective respondents submit that the policy covers the liability towards third parties only, and not the liability arising on account of death or injuries to the rider or the pillion rider of the motorcycle. They further submit that divergent views came to be taken on certain aspects, because the matter was dealt with by two different Tribunals. There is no denial of the fact that the appellant is the owner of the motorcycle. His son, along with a pillion rider, was returning from Vijayawada, on the National Highway No.5. The motorcycle dashed against a stationed lorry and both the persons died. The O.Ps., claiming compensation on account of the death of those two individuals, were filed before two different Tribunals. In one of it, the appellant figured as claimant together with his wife and in another as respondent in his capacity as owner of the motorcycle. He ought to have taken steps to get the O.P. in one of the Tribunals transferred to the other Tribunal. In one of the O.Ps., where the appellant herein is figured as respondent, the insurer of the motorcycle was totally absolved from the liability. Reliance was placed upon some of the decided cases. The Insurance Regulatory and Development Authority created under an Act of Parliament issued guidelines recently through circular dated 16.11.2009. After making reference to its earlier circulars, the Authority observed “the above circulars make it clear that the insured’s liability in respect of occupants carried in a private car and pillion rider carried on two wheeler is covered under the Standard Motor Package Policy”. It is not in dispute that the appellant herein has taken a ‘package policy’ for the vehicle. Further, additional premium was paid to cover the owner-cum-driver. The view taken by the Tribunal in O.P.No.1334 of 2007 that the insurer of the appellant herein is not liable to pay compensation does not accord with this. The said circular was not made part of the record. Another important aspect in the said O.P. is that the Tribunal held that the driver or owner of the lorry are not liable for occurrence of the accident. In the other O.P., the Tribunal took the view that the improper parking of the lorry has also contributed to the accident. Further the liability of the lorry was restricted to 10%. There is a clear divergence of opinion, on the same set of facts. In this scenario, it is difficult to reconcile them. The only alternative is to remand the matters and to direct transfer of one of the O.Ps. Hence, the appeals are allowed, and a) the orders passed by the respective Tribunals in O.P.Nos.1334 of 2007 and 27 of 2008 are set aside; b) the insurer of the motorcycle shall be liable to cover the risk towards pillion rider, in view of the circular issued by the Insurance Regulatory and Development Authority; and c) O.P.No.1334 of 2007, on remand, to the Motor Accidents Tribunal-cum-District Judge, Guntur, is hereby transferred to the Motor Accidents Tribunal-cum-VII Additional District Judge, Ongole, and on such transfer it shall be heard along with O.P.No.27 of 2008. d) The Tribunal, which hear the matter shall re-determine the extent of liability of the lorry, for occurrence of the accident. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 08.06.2011 GJ