the General Manager, United Insurance Co. Ltd. v. M. Laxmi and Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6659 of 2008. From the final Judgment and Order dated 19.03.2004 of the High Court of Andhra Pradesh at Hyderabad in CMA No. 2512 of 1999. Sakshi Mittal and B.K. Satija for the Appellant. i K. Sarada Devi for the Respondents. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.

1Leave granted.

2Challenge in this appeal is to the judgment of a learned Single Judge of the Andhra Pradesh High Court allowing the appeal filed by respondent Nos. 1 to 3.

3Background facts in a nutshell are as follows: One Ramulu (hereinafter referred to as the 'deceased') died in a vehicular accident on 8.10.1996. Respondents 1 to 3 are his widow, son and father respectively. A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short 'the Act') claiming compensation of Rs. 3,00,000/-. The claimants averred in the claim petition that the deceased and GENERAL MANAGER, UNITED INSURANCE CO. v. M. 51 LAXMI AND ORS. [DR. ARIJIT PASAYAT, J.] one Mohd. Mohsin were going on a scooter belonging to M. Yadireddy, respondent no.4 in the present appeal. The scooter was being driven by Mohd. Mohsin. At about 7.00 p.m. the scooter hit a bullock cart which was going in the same direction because of rash and negligent driving of the scooter, the deceased fell down and sustained fatal injuries. At the time of B his death, he was 29 years of age. Compensation was claimed from the owner of the scooter.

Present appellant was the insurer which had insured the vehicle in question. The insured remained ex-parte. The present appellant filed its counteraffidavit denying all the material allegations. It was pointed out c that admittedly, the policy of insurance was an Act policy and the deceased was a pillion rider and also gratuitous passenger and hence, not a third party, and he cannot claim compensation from the insurance company which insured the vehicle. The learned Additional Special Judge for SPE and ACB Casescum-V Additional Chief Judge, City Civil Court, Hyderabad (hereinafter referred to as 'MACT') who adjudicated the claim petition, held that the policy was an Act policy in respect of the Scooter on the date of accident, therefore, the insurer had no liability.

It was categorically held that unless the policy in E question covers even a gratuitous passenger, such person, who met with an accident while going in the vehicle in question and received injuries or his legal heirs, in case of his death following such accident, cannot proceed against the concerned insurance company for any compensation. The compensation payable was fixed at Rs.1,07,436/- with 12% interest per annum. It was held that the sum was to be realized from the insured and not from the present appellant. An appeal was preferred by the claimants before the High Court, which, by the impugned judgment relying on a Circular G of the Tariff Advisory Committee held that the liability of the insurer was there. The appeal was, accordingly, allowed.

4Learned counsel for the appellant submitted that the High Court has misread the Circular of the Tariff Advisory H 52 A Committee dated 2.6.1986. The same referred to compensation payable to pillion riders ih case of comprehensive policy. The Clarification/Circular has no relevance so far as Act Policy Cases are concerned and it related to only Comprehensive Policy.

5Learned counsel for respondent Nos. 1 to 3, on the other hand, supported .the judgment of the High Court.

6There is no dispute that the Circular dated 2.6.1986 refers to Comprehensive Policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case ofComprehensive Policy. As noted by the MACT, the policy in th'e instant case was an Act Policy.

7In New India Assurance Co. Ltd. v. Asha Rani and Ors, (2003 (2) SCC 223), i_t has been noted as follows: "Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury~ !o any passeng~r of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in resP,ect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage". In view ofthe changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act; we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party".

Keeping in view the provisions of the 1988 Act, we are of the opinion that 35 1 the provisions tllereof do not enjoin any statutory liability · on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. GENERAL MANAGER, UNITED INSURANCE CO. v. M. 53 LAXMI AND ORS. [DR. ARIJIT PASAYAT, J.] Furthermore, sub-clause (i) of clause (b) of subsection ( 1) of Section 14 7 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."

8In United India Assurance Co. Ltd., Shim/a v. Tilak C Singh and Ors. (2006 (4) sec 404), it has been noted as follows: "'In our view, although the observations made in Asha Rani case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statuto1y policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."

9In view of what has been stated by this Court in Asha Rani and Tilak Singh cases (supra), the order of theHigh Court is clearly unsustainable and is set aside and that of the MACT is restored.

10The appeal is disposed of accordingly. B.B.B. Appeal disposed of.