THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.2620 OF 2002 DATED: 18-11-2009 Between: The National Insurance Company Limited, Rep., by its Divisional Manager, Alibag Street, Vijayawada. ..... APPELLANT- And Pasupuleti Annapurnamma & 2 others. .....RESPONDENTS JUDGMENT: This appeal is directed against the order, dated 07-06-2002, in M.V.O.P.No.84 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Vijayawada, wherein the claim of the 1st respondent herein was allowed in part awarding compensation of Rs.1,00,000/- with interest @ 9% p.a. from the date of the petition. 2. Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Perused the record. 3. 1st respondent herein filed the claim application seeking compensation of Rs.1,00,000/- on account of the death of the deceased-China Subbaiah, who died in a motor vehicle accident that occurred on 28-09-2002. The claimant is the wife of the deceased. According to her, on that day, the deceased boarded a lorry bearing No.ADB 4228 at Velathi Kothapalem village to go to Jamalapuram to attend the marriage of one K.Venkatanarayana and after attending the marriage, the deceased and others boarded the same lorry to return to their village and on account of the rash and negligent driving of the lorry by its driver, the lorry overturned resulting in the death of four persons on the spot including the deceased and injuries to twenty others. 4. The owner of the lorry remained ex parte. Appellant-insurer filed a counter opposing the claim and denying the liability, inter alia, on the ground that the deceased was unauthorized gratuitous passenger and his risk is not covered by the policy and therefore, the appellant is not liable to pay the compensation. 5. During enquiry, P.Ws.1 and 2 were examined and Exs.A1 to A3 were marked on behalf of the claimant. On behalf of the appellant-insurer R.W.1 was examined and Ex.B1 was marked. 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 lorry. The Tribunal also held that the deceased is entitled for the compensation of Rs.1,00,000/- with interest @ 9% p.a. from the date of the petition. Aggrieved by the same, the appellant-insurer filed the present appeal. 7. The main contention of the learned counsel appearing for the appellant is that as the deceased was admittedly a gratuitous passenger the insurer is not liable to pay the compensation as the risk is not covered by the policy. Even as per the averments in the claim application, the deceased along with others was travelling in the lorry as part of the marriage party. It is not a case where the deceased was transporting any goods by the lorry or accompanying the goods in the lorry as the owner thereof. In the evidence also, P.W.1 reiterated that the deceased was travelling in the lorry along with others and while they were returning after attending the marriage, the accident occurred. 8. In NEW INDIA ASSURANCE CO. LTD., v. ASHA RANI[1]; UNITED INDIA INSURANCE CO. LTD., v. TILAK SINGH AND OTHERS[2]; and NATIONAL INSURANCE CO. LTD v. RATTANI & ORS[3], the apex Court held that the insurance company is not liable to pay the compensation in respect of the risk of a person travelling as a gratuitous and unauthorized passenger in a goods vehicle. 9. In view of the principles laid down in the above decisions, the award passed by the Tribunal, fastening the joint and several liability on the appellant-insurer to pay the compensation, is not sustainable. As the deceased was travelling only as an unauthorized and gratuitous passenger in a goods vehicle, his risk is not covered by the policy-Ex.B1. 10. It is stated that as per the interim order, dated 17-09-2002, the appellant-insurer has deposited 50% of the award amount with interest and costs and the claimant has withdrawn the same. Having regard to the fact that the claimant is a poor widow the amount already deposited and withdrawn may not be recovered by the appellant-insurer. It is however open to the appellant-insurer to recover the said amount from the owner of the vehicle in terms of “ORIENTAL INSURANCE CO.LTD. V. NANJAPPAN AND OTHERS[4]’. It is also open to the claimant to recover the balance amount of the award from the owner of the vehicle. 11. In the circumstances, the impugned award is modified to the extent stated above. 12. In the result, the appeal is allowed in part as stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 18th November, 2009 Tsy [1] 2003 ACJ 1 (SC) [2] 2006 ACJ 1441 [3] I (2009) ACC 417 (SC) [4] 2004 ACJ 721 (SC)