G. BIKSHAPATHY, J.

( 1 ) THIS appeal is preferred by the Insurance company against the orders dated 1-12-1998 passed by the learned Motor accident Claims Tribunal (Chief Judge, City civil Court, Hyderabad) in O. P. No. 568 of 1994.

( 2 ) THE claimants are the legal representatives of the pillion rider dr. G. Ramakrishna Reddy who died in an accident that took place on 21 -11 -1993. On that day, the deceased was travelling as a pillion rider on the motorcycle driven by the 1st respondent in the O. P. bearing No. ATC 7103, from Krishna Oberoi Hotel towards the university. While so, on the way, on account of rash and negligent driving of the driver of the motor cycle, unfortunate accident had occurred in which the pillion rider was severely injured and immediately he was admitted in the Apollo Hospital, wiiere he succumbed to the injuries on 31-12-1993. The legal representatives of the deceased pillion rider lodged a petition in OP. No. 568 of 1994 claiming compensation for the death of the deceased. The said claim was resisted by the owner of the motorcycle as well as by the Insurance Company.

( 3 ) BEFORE the court below, three witnesses were examined for the claimants and Exs. A-1 to A-22 were marked and on behalf of the respondents, two witnesses were examined and Exs. B-1 to B-3 were marked

( 4 ) THE learned Chief Judge, after considering the evidence on record found that the accident had occurred on account of the rash and negligent driving ot the owner of the motorcycle and therefore, the insurance Company with which the vehicle was insured was liable to pay the compensation to the claimants. Taking into consideration the income of the deceased, the learned Judge granted Rs,35. 00 lakhs as compensation with interest at the rate of 12% per annum from the date of petition till realization. Aggrieved by the said order, the insurance Company has preferred the present appeal.

( 5 ) MR. Kota Subba Rao, learned counsel for the Insurance Company firstly contends that there was no negligence on the part of the driver of the motorcycle and therefore the lower Court ought not to have awarded the compensation. Secondly he contends that the policy did not cover the pillion rider. In an accident, which arose after the amendment viz. , after 14-11-1994, under Section 147 of the Motor vehicles Act, 1988 (for short the act ), the owner and the piition rider are covered and prior to that, the pillion rider is not covered. Admittedly in this case, the pillion rider died on 3-12-1993 and therefore on this ground also the compensation as awarded by the court below is liable to be set aside.

( 6 ) ON the other hand, the learned counsel for the claimants submits that the Insurance company cannot contend that there is no negligence on the part of the driver of the motor cycle as it is not one of the terms of the policy and the defenses which are available to the insurance company only should be pleaded. In the absence of taking any permission under Section 170 of the Act from the court below, the Insurance company is precluded from contending such an issue. He also submits that the pillion rider is also entitled for compensation as held by the Supreme Court in catena of decisions, which would be referred to in the subsequent paragraphs.

( 7 ) SO far as the contention relating to the negligence on the part of the driver of the motor cycle is concerned, it is now well settled by the judgment of the Supreme court that such a defence is not available to the Insurance Company. Admittedly, in the instant case, no permission was obtained from the court below as required under section 170 of the Act and in the absence of obtaining such a permission, it would not be permissible for the Insurance Company to challenge the issue with regard to negligence on the part of the driver as held by the Supreme Court in Shankarayya v. United India Insurance Company.

( 8 ) UNDER these circumstances, we have to negative the contention raised by the learned counsel for

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