An 'Act only policy' under the Motor Vehicles Act does not cover the risk of gratuitous passengers, such as pillion riders, unless additional premium is paid.

JUDGMENT

1. Aggrieved by the judgment and award passed in MVC No.583/2011 by Senior Civil Judge and JMFC and MACT-XV, Kunigal dtd. 24/8/2017, the petitioners as well as the Insurance Company have approached this Court in these appeals.

2. MFA No.174/2018 is filed by the Insurance Company assailing the fastening of the liability on it and MFA No.6621/2018 is filed by the petitioners seeking enhancement of the compensation.

3. The brief facts are as below:

That on 24/3/2011 at about 10.30 p.m. deceased Siddiqullah Khan, was travelling from Kunigal as a pillion rider on bike No.K.A.04-EA-5134. While so traveling near weir of Kunigal big tank the rider of Hero Honda Bike rode it in high speed in rash and negligent manner took his vehicle in a ditch, as a result fell on right side of the road with the bike. Due to this accident Siddiqullah Khan sustained fatal injuries. Immediately, he was shifted to Sridevi Hospital Tumakuru and then to NIMHANS Bangalore for better treatment. However, as per the advise of doctors he was shifted to Mallige hospital Bangalore and was in ICU.

Unfortunately, he succumbed to the injuries on 26/3/2011 at about 9.30 PM. Thereafter, the petitioners have performed his last rites by incurring expenses of Rs.40, 000.00 00. Besides, the petitioners have also incurred expenses of Rs.80, 000.0000 towards his medical expenses.

4. Earlier to the accident the deceased was aged about 24 years, bachelor and earning Rs.500.0000 per day from scrap business. The Kunigal police have registered a case against the offending bike rider in Crime No.79/2011 for the offences punishable under Sec. 279 and 304(A) of IPC. The bike is owned by the respondent No.1 and insured with respondent No.2. Now, due to his unfortunate death the petitioners have been put to mental agony and financial loss. Hence, the petitioners have claimed of compensation of Rs.15, 00, 000.00 with 12% interest per annum.

5. In response to the notice issued, the respondent No.1 did not appear and he was placed ex-parte; and the respondent No.2 has appeared through its counsel. The respondent No.2 has filed the written statement, contending that, there was no rash and negligent riding by the rider of Hero Honda bike. The alleged accident has happened due to mechanical failure of the bike and the Kunigal police in collusion with the petitioners have registered a false case against the bike rider. Further, it has submitted that, at the time of accident neither the rider of the bike nor the deceased wore protective head gear and thereby, the contributory negligence may be fixed against the deceased also. The rider of the hero Honda bike bearing No.KA-04-EA- 5134 did not possess valid and effective driving license at the time of accident, as such, the insurance company is not liable to pay any compensation. The compensation claimed is exorbitant for which the petitioners are not entitled. By denying the age and income of the deceased and also the expenses incurred for his funeral and treatment, it has sought for dismissal of petition. Later the Insurance Company has taken up the contention that the policy issued was 'Act Only' policy and therefore, the pillion rider is not covered under the policy.

6. On the basis of the above pleadings, the Tribunal framed following issues;

1. Whether the petitioners proved that on 24/3/2011 at about 10.30 p.m. the deceased Siddiqullah Khan has suffered accident near weir (Kodi) of Kunigal Big Tank, on Tumakuru-Kunigal Road, as a result of actionable negligence of rider of Motorbike with Reg. No.KA-04-EA-5134?

2. Whether the 2nd respondent proves that the accident has taken place due to mechanical failure of Hero Honda Motorbike bearing Reg. No. No.KA-04- EA-5134?

3. Whether the 2nd respondent proves that the rider of Hero Honda Motorbike bearing Reg.No.KA-04-EA- 5134 was not holding a valid and effective driving license at the time of the accident?

4. Whether the petitioners are entitled for any compensation, and if so, at what