THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Miscellaneous Appeal No.2215 of 2002 (Dated : 16-11-2009) Between: The New India Assurance Company Limited Bangalore …Appellant A n d P.chinnabba and others …Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Miscellaneous Appeal No.2215 of 2002 JUDGMENT: This appeal is directed against the judgment dated 4.2.2000 passed in O.P.No.73 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupathi (for short, `the tribunal’) wherein the claim of the respondents 1 and 2 herein was allowed in part awarding compensation of Rs.1,27,500/- with interest at 12% per annum from the date of the petition. 2. Heard learned counsel appearing for the appellant-insurer and learned counsel appearing for the respondents-claimants and perused the records. 3. Respondents 1 and 2 herein filed the claim application before the tribunal under Section 163-A of the Motor Vehicle Act, 1988 (hereinafter referred to as `the Act’) seeking compensation of Rs.1,50,000/- on account of death of the deceased Munu Swamy, who died in a motor vehicle accident that took place on 4.5.1998. The claimants are the parents of the deceased. According to them, on that day the deceased and one Ravi left Chandragiri to Mungilipattu on the motor cycle of the 1st respondent under whom the deceased was working to collect coolie amount and while returning to Chandragiri, the deceased Munu Swamy was driving the motorcycle and Ravi was the pillion rider and when they reached Dornakamabala turning, a tractor dashed against the motorcycle on account of rash and negligent driving resulting in injuries to the deceased. The deceased was admitted in S.V.R.R. Hospital, Tirupati and got himself discharged against the medical advice on 12.5.1998 and on 14.5.1998, he succumbed to the injuries. A case in Crime No.78 of 1998 was registered by the police against the driver of the tractor. According to the claimants, the accident occurred due to the rash and negligence of the rider of the motorcycle and also the driver of the tractor, as it was a head-on collision. 4. The 1st respondent-owner of the motorcycle remained ex parte. 5. The appellant-insurer filed counter opposing the claim and denying their liability. 6. During enquiry, PWs.1 and 2 were examined and Exs.A-1 to A-5 were marked on behalf of the claimants. Rw-1 was examined on behalf of the appellant, but no documentary evidence was adduced. 7. 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 deceased and also the driver of the tractor. The tribunal further held that the claimants are entitled to a total compensation of Rs.1,27,000/- with interest at 12% per annum. 8. Aggrieved by the same, the present appeal is filed by the insurer. 9. Learned counsel appearing for the appellant would contend that the deceased was not a third party and the policy being an Act policy, it does not cover the risk of the deceased, who was the rider of the motorcycle, and therefore, the appellant-insurer is not liable to pay compensation. 10. The finding of the tribunal that the accident occurred due to the rash and negligent driving on the part of both the deceased who was riding the motorcycle and the driver of the tractor is not challenged. The quantum of compensation awarded by the tribunal in a sum of Rs.1,27,500/- is also not seriously disputed. The only question, which arises for consideration in this appeal is whether the appellant-insurer is not liable to pay compensation as the deceased was rider of the motorcycle and was not a third party, and therefore, his risk is not covered by the Act policy. 11. It is not disputed that the deceased was driving the motorcycle belonging to the 1st respondent at the time of the accident. It is also not disputed that the policy taken by the 1st respondent in respect of the motorcycle is only an Act policy, i.e., covering the risk of third party. The question to be considered is whether the rider of the motorcycle can be held to be a third party? 12. In United India Insurance Co. Ltd. V. Etnoori Yadagiri Goud and others[1], this Court held that from the law as declared by the Supreme Court, it is clear that passengers cannot be treated as third parties. This Court further held that the Act itself has not defined who is a `third party’ and at any rate, it is common knowledge that the driver of the vehicle would not constitute a third party for purpose of Section 95 of the Act. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co.[2], which was referred to in the above decision, it was held that Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The plea that the words `third party’ are wide enough to cover all persons except the person who is the insured is negatived as the insurance cover is not available to the passengers is made clear by the proviso to sub-section which provides that a policy shall not be required. Of course, the insurer can always take policies covering risks which are not covered by the requirements of Section 95 of the Act”. 13. But in this case, admittedly, no additional premium is paid in respect of the rider or the pillion rider of the motorcycle and the insurance coverage is available only in respect of the risk to a third party. 14. In United India Insurance Co. Ltd V. Tilak singh and others[3], the apex Court held: “ In our view, although the observations made in Asha Rani’s case, 2003 ACJ 1 (SC), were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant insurance company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion order, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to gratuitous passenger.” 15. In Oriental Insurance Co. Ltd V. Sudhakaran K.V and others[4]. The question which arose for consideration is whether the pillion rider on a scooter would be a third party within the meaning of Section 147 of the Act?. The apex Court observed that indisputably, a distinction has to be made between a contract of insurance in regard to a third party and the owner or the driver of the vehicle. It was further held: “The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance, which is not statutory in nature should be construed like any other contract. xxxx xxxxxx xxxxx xxxxx 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 the owner of vehicle or the pillion rider; and (iii) the pillion rider on 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.” 16. The above decision makes it clear that a pillion rider is not to be treated as a third party and in the case of driver of the vehicle, the risk has to be covered specifically by the policy. 17. In a recent decision in New India Assurance Co. Ltd. Vs. Sadanand Mukhi and others[5], the apex Court held: “It is not a case where even Section 163-A of the Act was restored to. Respondents filed an application under Section 166 of the Act. Only an act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two wheelers, the vehicle was more prone to accident, and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term “a person” as provided for in Section 147 of the act, in our opinion, is not correct”. 18. In the light of the principles laid down in the above decisions, the contention of the learned counsel for the respondents-claimants that the expression “a person” occurring in Section 147 of the Act would cover every person including the rider or pillion rider of the motorcycle involved in the accident, cannot be countenanced. The above decisions make it clear that when the policy is only an Act policy covering a third party risk, no liability can be fastened on the insurer for the risk in respect of rider or pillion rider. The deceased, admittedly, being rider of the motorcycle and the policy being only an Act policy and no additional premium having been paid in respect of the rider, the appellant-insurer cannot be fastened with any liability to pay the compensation. It is open to the claimants to recover the amount of compensation from the owner of the vehicle. 19. In the result, the impugned order dated 4.2.2000 passed in O.P.No.73 of 1999, in so far as fastening joint liability on the appellant-insurer to pay compensation to the petitioners, is set aside. 20. In the result, the appeal is allowed to the extent stated above. No order as to costs. ______________________ G.V.SEETHAPATHY, J Dt.16-11-2009 RAR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Miscellaneous Appeal No.2215 of 2002 (Dated : 16-11-2009) [1] 1995 ACJ 600 [2] 1977 ACJ 343 (SC) [3] 2006 ACJ 1441 [4] 2008 ACJ 2045 [5] 2009(2) ALD 13(SC)