2020 Supreme(Kar) 593

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
The Oriental Insurance Company Limited – Appellant
Versus
Shri K.M. Harish Kumar S/o. Shri Manjunatha – Respondent
M.F.A.No.11489 of 2012 (MV)
Decided on : 19-06-2020

Headnote:

Motor Vehicles Act, 1988 – Claim of compensation – Motor accident claim - Whether Tribunal has committed an error in calculating loss of income on account of disability and it requires interference of this Court - Whether Tribunal has committed an error in fastening liability on Insurance Company in absence of any premium is paid covering liability of pillion rider - Whether Tribunal has committed an error in calculating loss of income on account of disability - Whether Tribunal has committed an error in fastening liability on Insurance Company - Whether a pillion rider on a scooter would be a third party within meaning of Section 147 of Act and held that pillion rider is not a third party - Brief facts of case are that claim petition was filed on behalf of one Master a minor represented by his mother claiming compensation for injuries sustained by him in a road accident that occurred - It is stated that minor-claimant while he was traveling as a pillion rider in a two wheeler TVS Victor GX had sustained injuries due to rash and negligent riding by its rider - In accident he has sustained fracture of right femur and fracture of both bones of right leg - Claimant was examined by P.A. as P.W.2 - Doctor has assessed disability to whole body – Tribunal after considering both oral and documentary evidence available on record allowed claim petition partly granting compensation with interest per annum from date of petition till its realization and directing this appellant to pay compensation - Being aggrieved by Judgment and Award of Tribunal present appeal is filed mainly on two grounds – Held, On perusal of principles laid down in judgment it is clear that Insurance Company is not liable to pay compensation to pillion rider and policy was a statutory policy and same did not cover risk of death of or bodily injury to gratuitous passenger - Learned counsel would submit that Apex Court in case has held that liability of Insurer to third parties gratuitous passengers – Third party Policy does not cover liability to gratuitous passengers who are not carried for hire or reward – Terms and conditions of comprehensive Policy relating to private cars cannot apply to third party policy - In absence of terms and conditions governing third party policy it cannot be accepted that it covers liability to occupants of vehicle private car Insurance Company not liable to reimburse owner of vehicle - Learned counsel appearing for appellant/Insurance Company rightly contended that pillion rider does not come within purview of third party - Deceased was traveled as a pillion rider on a scooter and it is categorically held that such a pillion rider is not to be treated as a third party under Section 147 of Act - It is further held that such a pillion rider would be covered only in case additional cover is purchased under contract of insurance - It is further held that legal obligation arising under Section 147 of Act cannot be extended to an injury or death of owner of vehicle or a pillion rider traveling thereon - It is also held that pillion rider become a gratuitous passenger and on perusal of written statement it is also specifically contended that policy does not cover risk of pillion rider and in support of said contention also witness has been examined before Tribunal and proved defense that policy does not cover risk of pillion rider - Hence it is clear that appellant/Insurance Company owed no liability towards injuries suffered by injured who was a pillion rider as Insurance Policy was a statutory policy and hence it did not cover risk of death of or bodily injury to a gratuitous passenger - Injured was indisputably not driver of vehicle he was a pillion rider and premium paid in respect of owner-cum-driver and also in respect of third party - Apex Court has held that pillion rider cannot be treated as a third party under Section 147 of Act - Very contention of learned counsel for claimant is that Insurance Company is liable to pay compensation cannot be accepted - Tribunal failed to appreciate facts of case on hand and erroneously came to conclusion that vehicle is a two wheeler with seating capacity of two including driver there has been coverage towards third party liability and there is separate personal expenditure coverage for registered owner-cum-driver - It is erroneously further observed that when seating capacity of vehicle is two and there is separate premium for owner-cum-driver then liability has coverage of appellant in respect of said vehicle - Said approach is erroneous and there is no separate premium in respect of pillion rider and premium is paid only in respect of third party and also in respect of owner-cum-driver and policy was misinterpreted while fastening liability on Insurance Company - In absence of premium not paid in respect to pillion rider and when policy is an act policy that means liability policy Tribunal ought not to have held that Insurance Company is liable to pay compensation and said erroneous approach requires to be set aside and liability has to be modified by answering point No.2 as affirmative - Appeal is allowed