IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SEVENTH [27TH] DAY OF NOVEMBER TWO THOUSAND AND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1137 of 2004 Between: United India Insurance Co. Ltd., Rep. by its Divisional Manager, Kurnool … Appellant And: Gorantal Sarojamma & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1137 of 2004 JUDGMENT: This appeal is directed against the order dated 17.01.2003 in MVOP No.1002 of 2000 on the file of the Motor Accidents Claims Tribunal cum II Additional District Judge, Kurnool [for short ‘the Tribunal’], wherein, the claim of the respondents 1 and 2 herein was allowed in part awarding compensation of Rs.1,70,000/- with interest at 9% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The respondents 1 and 2 herein-claimants filed petition seeking compensation of Rs.2,00,000/- on account of the death of the deceased G. Rosaiah, who died in a motor vehicle accident that occurred on 02.03.2000. The first claimant is the wife and 2nd claimant is the son of the deceased Rosaiah. According to them, on that day, the deceased along with others was returning from Alampur to Nandikotkur in a jeep bearing No.AP 27 B 524 and when the said jeep reached near Alampur chowrasta, the jeep fell on the right side ditch and over turned on account of the rash and negligent driving by its driver. The deceased, who sustained injuries, was shifted to Government hospital, Kurnool, wherein he died while undergoing treatment. The deceased was stated to be aged 50 years at the time of the accident and was doing kirana business and was earning Rs.4000/- per month. 4. The owner of the vehicle remained exparte. The appellant- insurer filed counter opposing the claim and denying their liability to pay the compensation. During enquiry, PWs. 1 to 3 were examined and Exs.A.1 to A.8 were marked. The Senior Assistant in the appellant-insurance company was examined as RW.1 and Ex.B.1 copy of the policy was marked. 5. On a consideration of the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the jeep by its driver. The said finding is not seriously challenged in this appeal. The Tribunal further held that the claimants are entitled for a total compensation of Rs.1,70,000/-. The quantum of compensation awarded by the Tribunal is also not seriously challenged. The only contention of the learned counsel for the appellant-insurer is that there was no coverage under Ex.B.1 policy regarding the risk of a passenger, who was travelling in the jeep and so no liability can be fastened on the appellant/ insurer. Learned counsel for the respondents 1 and 2 on the other would contend that the deceased was a third party and therefore his risk is duly covered by the policy. 6. A perusal of the copy of the policy would disclose that it was an Act policy covering the risk of the third party only. No premium is paid covering the risk of any passenger or any other passenger. In ‘Branch Manager, United India Insurance Co. Ltd., Kamareddy vs. Kondakotla Saroja[1]’ the Division Bench of this Court, following the decision of the Apex Court in ‘Oriental Insurance Co. Ltd. Vs. Meena Variyal [2007 (3) ALD 99 (SC) and ‘Pushpabai Purshottam Udeshi & others vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd., [AIR 1977 SC 1735], held as follows: “Once the insurance company under Ex.A.5 cover note has not undertaken the liability by collecting extra premium for the passengers who travelled in the insured vehicle, it cannot be held liable to pay the compensation and it is only the respondent-owner of the vehicle who is liable to satisfy the decree and pay the compensation amount”. 7. In view of the principles laid down by the Apex Court in the decision referred to supra and the Division Bench of this Court, the contention of the learned counsel for the respondents 1 and 2- claimants, is untenable. Inasmuch as, the deceased was not a third party to the vehicle, but was a passenger travelling in the vehicle and the policy Ex.B.1 did not cover the risk of any passenger. It is not a case where there has been violation of any terms of the policy, but it is a case where there is no coverage at all to recover the risk of a passenger, like deceased. Under those circumstances, the question of fastening any liability on the insurer to pay the compensation does not arise. The impugned order is accordingly modified exonerating the appellant/insurer from any liability to pay the compensation. 8. It is stated that in pursuance of the interim order dated 13.08.2003, the appellant/insured has deposited the entire amount and hence, as per the order dated 02.04.2004 in CMP No.27575 of 2003 the interim order was made absolute and the claimants have already withdrawn half of the deposited amount with proportionate costs and interest. Having regard to the fact that the claimants are poor villagers and it would be hardship to repay the amount at this length of time, it is appropriate that the amount already withdrawn by the claimants may not be recovered from them. It is, however, open to the appellant- insurer to recover the said amount from the owner of the vehicle. The appellant-insurer is also entitled for refund of the balance amount that was deposited as per the interim order, which is lying to the credit of the OP. 9. In the result, the civil miscellaneous appeal is allowed to the extent stated above. No order as to costs. _______________________ G.V.SEETHAPATHY, J Date: 27.11.2009 bss [1] 2008(5) ALD 288