1 FA : 136/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.136 OF 2011 United India Insurance Co. Ltd. .... Appellant Vs. Manohar Mahadeo Kaphale & Anr. .... Respondents Mr. S.S. Vidyarthi i/by Mr. A.S. Vidyarthi, Advocate for appellant. None for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 29 th April, 2011 P.C. 1. This First Appeal is preferred by the Insurance Company to challenge the order dated 4 th April 2008 passed by the Motor Accidents Claims Tribunal, Mumbai on the application for compensation on the basis of no fault liability under Section 140 Motor Vehicles Act. Notice of the admission of the appeal was issued on 1 st April 2011. Pursuant to the directions given on that day, notice served upon the 2 FA : 136/2001 respondents indicated that the appeal may be heard and finally disposed off at the stage of admission itself, taking into consideration the fact that the appeal involves a short question which has already been decided by the pronouncements of the Apex Court and Division Bench of this Court. Notice of the appeal has been served upon the respondents. None is however present in response to the notice. Learned counsel for the appellant submits that considering the facts and circumstances of the case, the appellant- insurance company is not liable to indemnify respondent no.2, the insurer. 2. Respondent no.1 had filed Motor Accident Claims Petition No. 1655 of 2006 in the Tribunal seeking compensation in the sum of Rs. 19,43,053/- for the injuries sustained by him in the motor vehicle accident. The facts as pleaded in the appeal are that on 14 th June 2004, respondent no.1 was commuting by a car bearing registration No.MH04-AC-8744 from Mumbai towards Chiplun. The car was driven by his friend. When the said car reached near village Pedhe, it was on a steep descent and was to take a steep curve ahead. The car was however being driven in a reckless manner at high speed. Consequently the driver of the car lost control over the car and went to the extreme wrong side of the road and dashed against the truck, which was coming from opposite direction. The driver of the truck tried to avoid the accident by taking his truck to extreme left side of the 3 FA : 136/2001 road, however the accident could not be averted. In the accident,respondent no.1 claimed to have sustained fracture injury of both shoulders, right foot and left femur. Respondent no.1 filed the claim petition only against the owner and insurer of the car, in which he was traveling. The owner and insurer of the truck has not been impleaded to the proceedings. Probably the respondent no.1 is aware that there was no fault on the part of the driver of the truck. 3. Mr. Vidyarthi points out that it is evident from the document annexed to the application of respondent no.2, that insurance policy was an “Act only policy”. As such it covered only the third parties and not any gratuitous passenger travelling in the car. Perusal of the pleadings and copy of insurance policy produced by Mr. Vidyarthi confirms this position. In that circumstance, Mr. Vidyarthi submits relying upon decision of the Apex Court in (i) United India Insurance Company vs. Tilak Singh and others, reported in Accidents Claims Journal 2006, 1441 and decision of Division Bench of the Court (ii) New India Assurance Co. Ltd. vs. Babasaheb Anna Mali and others, reported in 2002 A.C.J., 642. Both decisions hold that a statutory insurance policy under the Motor Vehicles Act, 1988,intended to cover the risk to life or damage to properties of third parties would not cover the risk of death or injury to a gratuitous passenger carried in a private vehicle. In view of the direct decision on the issue, the appellant-insurance company cannot be held liable to pay any 4 FA : 136/2001 amount towards compensation to respondent no.1. The amount of compensation will include compensation towards no fault liability. The Division Bench has specifically held that under such circumstances, the insurance company cannot be saddled with no fault liability under Section 92-A even under the limited and restricted enquiry. Applying the law laid down by the Apex Court, and the Division Bench of this Court to the to the facts and circumstances of the case, the impugned judgment and order cannot be sustained. In the circumstances, the appeal is allowed. The impugned judgment and order dated 4 th April 2008 is set aside. 4. The appellant is at liberty to withdraw the amounts deposited in this Court as well as in the Tribunal. (SMT.R.P. SONDURBALDOTA,J)