Point of Law: Appellant-Insurance company should not have been held liable to reimburse the compensation.

JUDGMENT :

P. KRISHNA BHAT, J.

1. This appeal is at the instance of insurance company calling in question the correctness of the judgment and award dated 26.07.2010 passed in MVC No. 1423/2004 by the II Addl. District Judge and Member, MACT-III, Dakshina Kannada, Mangalore, to the extent of fastening the liability to pay the compensation on it.

2. A claim petition seeking compensation was filed on the allegation that on 31.07.2004 at about 8.45 p.m. when claimant was proceeding in Bajaj Chetak Scooter No. CTA 8277 as a pillion rider and the scooter reached near Petrol pump at Padupanambur Village, on account of rash and negligent riding of the scooter by its rider, scooter fell on the road and claimant suffered fracture of his left leg.

3. Before the learned Claims Tribunal owner of the offending scooter remained absent and he was placed ex-parte. The appellant-insurance company contested the proceedings by filing detailed written statement denying the material averments made in the claim petition.

4. Subsequently, one Ashok S/o Late Sundara Poojary was brought in as respondent No. 3 and even though he entered appearance through a learned counsel, did not choose to file any written statement.

5. During the trial claimant examined himself as PW-1 and Exs.P-1 to P-9 were marked. Respondents did not examine any witness and policy of insurance was marked as Ex.R-1.

6. Learned counsel for the appellant-insurance company candidly submits that he does not dispute occurrence of accident and injuries suffered by the claimant as a pillion rider and his only grievance is that even though offending scooter was covered with an Act policy and no additional premium was paid to cover the risk of pillion rider, learned Tribunal merely on account of the fact that there was policy coverage for the scooter, has proceeded to fasten the liability on the insurance company. Therefore, he submits that in view of the series of decisions of Hon’ble Supreme Court, more importantly the one in Oriental Insurance Co. Ltd. vs. Sudhakaran K.V. 2008 ACJ 2045 (SC) and National Insurance Co. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731, the direction in the award to the extent of fastening liability on the insurance company is required to be set aside and the appeal is entitled to be allowed to the said extent.

7. Learned counsel appearing for respondent No. 3 has remained absent.

8. I have given anxious consideration to the submissions made by the learned counsel for the appellant and I have carefully perused the records.

9. Ex.R-1 is the policy of insurance issued by the appellant-insurance company in respect of the offending scooter bearing Registration No. CTA 8277. Case of the claimant is that on 31.07.2004 while he was a pillion rider of the scooter, on account of rash and negligent riding of the scooter he fell on the road and suffered certain injuries.

10. Perusal of Ex.R-1 shows that no additional premium was paid by the owner of the scooter to cover the risk of pillion rider. Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Sudhakaran K.V. 2008 ACJ 2045 (SC), has observed as follows:

“19. The law which emerges from the said decisions is: (i) the liability of the insurance company in a case this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk; (ii) the legal obligation arises under section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider and (iii) the pillion rider on a two-wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.”

11. Similarly Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731 has observed as follows:

“26. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive