IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY FIFTH (25TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M A C M A No.2639 of 2009 Between: The Oriental Insurance Co. Ltd., Nidadavole … Appellant And: Chippada Varalakshmi & others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.2639 of 2009 JUDGMENT: This appeal is directed against the order dated 30.08.2006 in OP No.782 of 2001 on the file of the MACT cum I Additional District Judge, West Godavari at Eluru, wherein the said application filed by the respondents 1 to 6 claiming compensation was allowed, awarding Rs.2,25,000/- with interest at 7.5% per annum. 2. Heard the learned counsel for the appellant-insurer and the learned counsel for the respondents 1 to 6. Perused the record. 3. The respondents 1 to 6 herein filed claim application under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.3 lakhs for the death of the deceased Chippada Srinivas, who died in a motor vehicle accident that occurred on 10.01.1998. The first claimant is the wife, claimants 2 and 3 are minor children, 4th claimant is the mother and claimants 5 and 6 are unmarried sisters of the deceased. According to the claimants on that day, the deceased was proceeding as a pillion rider on the Hero Honda Motor cycle AP 37 C 6297 belong to the 7th respondent herein from Rajahmundry to Nidadavole and when they reached near rail cum road bridge, on account of rash and negligent driving of the motor cycle by its rider-7th respondent herein, lost control over the same and dashed against the rickshaw and fell on the road, as a result of which, the deceased, who sustained head injury died on the spot. 4. The 7th respondent herein remained exparte. The appellant- insurer filed counter opposing the claim and denying their liability to pay the compensation, inter-alia contended that the insurer is not liable to pay any compensation on the ground that the deceased being a pillion rider is not covered by the policy, which is an Act policy. 5. During enquiry, PWs.1 and 2 were examined and Exs.A.1 to A.7 were marked on behalf of the claimant. RW.1 was examined and Exs.B.1 and B.2 were marked on behalf of the insurer. 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 motor cycle by its rider-7th respondent herein. The Tribunal further observed that after the deceased pillion rider fell down on the road, he was run over by an unknown lorry. The Tribunal awarded total compensation of Rs.2,25,000/- with interest at 7.5% per annum from the date of petition. 6. Aggrieved by the same, the insurance company filed the present appeal. 7. The charge sheet discloses that the lorry was traced and on verification of the documents, it was found that the lorry was not involved and therefore, the driver of the lorry was exonerated. In fact in the claim application, the claimants have specifically stated that the accident occurred due to the rash and negligent driving of the motor cycle by 7th respondent only. Even according to the claimants, it was only on account of the rash and negligent driving of the motor cycle by 7th respondent, who lost control and dashed against the rickshaw and the deceased fell on the road and sustained head injury and died on the spot. It is no where pleaded by the claimants in the claim application that the deceased was run over by unknown lorry. The claimants have not impleaded the owner or insurer of the lorry, which is identified and referred to in the charge sheet. The criminal court records also discloses that it was only the motor cycle that alone was involved in the accident and the accident occurred due to the rash and negligent driving of the motor cycle by 7th respondent herein. 8. The main contention of the learned counsel for the appellant is that as the deceased was admittedly a pillion rider and the policy being an Act policy, the risk of pillion rider is not covered and therefore, the appellant-insurer is not liable to pay the compensation. Ex.B.1 copy of the policy shows that it was an Act policy and only the basic premium to cover the risk of third party was collected in a sum of Rs.40/- and no additional premium was collected to cover the risk of any one else. 9. In a decision in ‘New India Assurance Co. Ltd. V. Sadanand Mukhi[1], the apex Court held that ‘the insurance company would have no liability towards injuries suffered by the deceased, who was the pillion rider, as the insurance policy was a statutory policy which did not cover the gratuitous passenger’. In the above case, the apex court has referred to the earlier decision in ‘United India Insurance Co. Ltd. V. Tilak Singh[2]’, and observed that the said case considered the provisions of the Motor Vehicles Act 1939 as also 1988 Act and inter- alia opined that the insurance company has no liability, which is referred to by the Tribunal and held that as the said accident was prior to the amendment of Section 147 of the Motor Vehicles Act in the year 1994 and the said decision is not applicable to the case on hand. 10. In the circumstances and in view of the principles laid down by the apex Court in the above decisions and in view of the fact that the policy is an Act policy covering the risk of only the third parties but not the risk of the pillion rider and the deceased being admittedly pillion rider and therefore not a third party, it is held that the insurance company is not liable to pay the compensation. 11. It is open to the claimants to recover the compensation awarded by the Tribunal from the owner of the vehicle. The impugned award insofar as it is fastening the liability on the appellant-insurance company, is accordingly set aside. The appellant-insurer is permitted to withdraw the amount which was deposited into the court in pursuance of the interim order dated 16.06.2008 in MA CMA MP No.3261 of 2008. It is open to the claimants to avail other remedies if any available under law. 12. In the result, the appeal is allowed as stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 25.08.2011 bss [1] 2009(2) ALD 13 (SC) [2] (2006)4 SCC 404