Bombay High Court
United India Insurance Co. Ltd. Gondia ... vs Diwan S/O Nathuji Warkhade And Others on 23 January, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
FA 699/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL No. 699/2017
United India Insurance Co.Ltd., Gondia,
through Regional Manager, United India
Insurance Co. Ltd., Shankarnagar square,
Nagpur. APPELLANT
.....VERSUS.....
1. Diwan s/o Nathuji Warkhade,
aged 50 yrs, Occu: Physically and
Mentally weak.
2. Indira w/o Diwan Wardkhade,
aged 42 yrs.
3. Rahul s/o Diwan Warkhade,
aged 21 yrs.
All R/o Sahayata Nagar, Fulchurpeth,
Gondia, Tah. & Dist: Gondia.
4. Ajit @ Ajitkumar s/o Vilas Madarkar,
aged 23 yrs, Driver, R/o Sahayata
Nagar, Fulchurpeth, Gondia, Dist: Gondia.
5. Vilas s/o Yadorao Madarkar,
aged 52 yrs, Owner, R/o Sahayata
Nagar, Fulchurpeth, Gondia. RESPONDENTS
Shri Asghar Hussain, counsel for appellant.
Shri K.S. Motwani, counsel for the respondent nos.1 to 3.
CORAM : A.S. CHANDURKAR, J.
DATE :23RD JANUARY, 2019.
ORAL JUDGMENT
After admission of the appeal, the claimants had moved an application seeking permission to withdraw the amount of compensation as deposited by the appellant. Considering the short issue involved, by order dated 08.01.2019, it was directed that the appeal itself could be heard finally.
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FA 699/17 2 Judgment
2. The appellant has challenged the award passed by the Motor Accident Claims Tribunal, Gondia on the ground that the deceased was a pillion rider on the motorcycle owner by the respondent no.5 herein. On 01.07.2013, when the deceased along with respondent no.5 were proceeding on the motorcycle, it turned turtle resulting in injuries to the pillion rider. He succumbed to the injuries and hence claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the said Act') was filed. The Insurance Company raised the defence that as the deceased was a pillion rider, he was not a third party and his risk was not covered. The learned Member of the Claims Tribunal however held that as the sitting capacity of the said vehicle was of two persons, the risk was covered. Being aggrieved, the Insurance Company has filed this appeal.
3. Shri A.Hussain, learned counsel for the appellant submitted that under the policy at Exhibit 34, the risk of the pillion rider was not covered. The observations of the Claims Tribunal in paragraph 15 of the impugned judgment was on account of misreading the policy document. The sitting capacity of the vehicle as mentioned was wrongly construed as the Clause regarding coverage. Placing reliance on the decision in United India Insurance Co. Ltd. Versus Tilak Singh & Others [2006 ACJ 1441] and Oriental Insurance Co.Ltd. Versus Sudhakaran K.V. & others [2008 ACJ 2045], it was submitted that in absence of any additional premium being paid, the risk of the pillion rider was not covered. ::: Uploaded on - 30/01/2019 ::: Downloaded on - 27/03/2020 03:28:04 :::
FA 699/17 3 Judgment
4. Shri K.S. Motwani, learned counsel for the respondent nos.1 to 3 supported the impugned judgment. He submitted that though the deceased was a pillion rider, on falling from the said motorcycle, he ceased to be so and he attained the character of a third party. It was submitted that the Claims Tribunal rightly awarded compensation by holding the risk of the deceased to be covered under the policy.
5. The following point arises for determination:-
"Whether the finding recorded by the Claims Tribunal holding the Insurance Company liable to pay compensation is correct?"
6. I have heard the learned counsel for the parties and I have perused the impugned judgment. It is not in dispute that the respondent no.4 was driving the two wheeler owned by the respondent no.5. The deceased was a pillion rider and on account of the said accident, the pillion rider succumbed to the injuries. As per the policy at Exhibit 34, additional premium has not been paid for covering the pillion rider and only the basic amount of premium has been paid. The words "solo with pillion" have been mentioned while describing the particulars of the vehicle insured. Those words cannot be construed as covering the risk of a third party. In Tilak Singh & Others (supra), it was held that when the vehicle was insured under an Act Policy and no additional premium was ::: Uploaded on - 30/01/2019 ::: Downloaded on - 27/03/2020 03:28:04 ::: FA 699/17 4 Judgment paid, the risk of the pillion rider would not be covered. In Sudhakaran K.V. & Others (supra), it has been held that a pillion rider of a two wheeler cannot be treated as a third party for being covered under Section 147 of the said Act. In the light of this clear position, it is obvious that the risk of the deceased was not covered as he was a pillion rider. It is only the owner of the said vehicle who would be responsible to pay the amount of compensation. The point as framed is accordingly answered by holding that the Claims Tribunal wrongly held the Insurance Company liable to pay compensation.
7. In view of aforesaid, the following order is passed. I. The judgment dated 20.12.2016 in Claim Petition No.12 of 2014 is partly modified. It is held that it is only the original non-applicant no.2 who would be liable to pay he amount of compensation. The original non-applicant no.3 stands exonerated from the liability.
II. The appellant would be entitled to receive back the amount deposited along with accrued interest.
8. The First Appeal is allowed in aforesaid terms and disposed of. No costs.
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