Kamlesh Devi And Others vs Bhola Nath And Others

Sanjeev Kumar, J

The claimants seeking compensation on account of death of their predecessor-in-interest have filed the instant appeal against the award dated 31.01.2009 passed by the Motor Accident Claims Tribunal, Kathua (hereinafter „the Tribunal‟) in file No.121/CP, titled Kamlesh Devi and others v. Bhola Nath and others. The appellants assail the impugned award only to a limited extent that the Tribunal has committed an error of law by absolving respondent No.3-insurer of its liability to indemnify the insured (owner of the offending vehicle) and pay compensation to the claimants.

It is urged that the Tribunal has absolved the insurer of its liability solely on the ground that the deceased was a pillion rider on the offending vehicle driven by respondent No.1 and owned by respondent No.2. Mr. Raghu Mehta, learned counsel for the appellant/claimants, argues that the findings of the Tribunal on issue No.3 have been rendered without even determining as to whether the policy of insurance, whereby the offending vehicle was insured as an Act only policy or a comprehensive one. It is submitted that the policy produced by respondent No.3, which is on record of the Tribunal, clearly indicates that it is a comprehensive policy and the person conveyed on the offending vehicle is also covered to the extent of liability. He has drawn attention of this Court to the policy of insurance, particularly, SECTION II of the Motor Cycle/Scooter Insurance „B‟ Policy.

Per contra, Mr. R.K.Gupta, learned senior counsel, appearing for respondent No.3, places strong reliance on the statement of RW-2, Mr. Amrik Singh, who in his testimony has deposed that the offending vehicle, scooter, was insured with the company for third party and that the pillion rider was not covered.

Having heard learned counsel for the parties and perused the record, it is necessary to first set out relevant terms of the insurance policy obtained by owner of the offending vehicle, namely, Bharat Bhushan, qua the offending vehicle i.e. scooter bearing regd. No.JK08-1435.

Clause-I of SECTION II-LIABILITY TO 3RD PARTY reads as under:-

"Subject to the limits of liability as laid down in Schedule hereto the Company will indemnify the insured in the event of an accident caused or arisen out of the Motor Cycle against all sums including claimant‟s cost and expenses which the insured shall become legally liable to pay in respect of

a) Death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward.

b) ..............................................."

From a perusal of the aforesaid Clause of the insurance policy, it is abundantly clear that the policy in question is a „comprehensive policy‟ and not Act only policy. Therefore, it would cover the pillion rider conveyed in or on the offending vehicle. Even, the recitals of the policy cover, clearly and specifically, indicate that it is a comprehensive policy.

The legal position has been well enunciated by the Supreme Court in the cases of Oriental Insurance Co. Ltd. v. Surender Nath Loomba and others, 2012(8) Supreme 71 and National Insurance Co. Ltd. v. Balkrishnan and another, 2013 ACJ 199 (SC). Mr. R.K.Gupta, learned counsel appearing for respondent No.3 could not bring to the notice of this Court any contrary judgment.

It is, thus, trite law that pillion rider on a motorcycle and a passenger in a private car is not a third party who is required to be compulsorily insured under the Act. It, thus, emerges that the Act only policy will not cover the risk of such person. However, nothing prevents the parties i.e. insured and the insurer to enter into contract of insurance to cover the risk of pillion rider in case of a Scooter/Motorcycle and a passenger/passengers travelling in a private car by paying extra premium. Any such contract of insurance would be known and is known as „Comprehensive Policy‟. As already clarified by the Supreme Court that the term "any person" occurring in Section 147(1) (b)(i) does not comprehend a pillion rider or passenger in a car travelling gratuitously. No statutory obligation is, therefore, cast on the owner of the motor vehicle to compulsorily insure pillion rider or such passenger. It is, thus, optional for the owner of motor vehicle to either go for comprehensive insurance of his vehicle covering the risk of pillion rider or passenger as the case may be by paying extra premium.

For the foregoing reasons, this appeal is allowed. The impugned award is modified only to provide that the award amount shall be satisfied by respondent No.3-insurer.