The liability of the insurance company for the death of a pillion rider under an Act only policy and the permissibility of converting a claim from Section 166 to Section 163A after availing compensation under Section 140.

The issue raised for consideration in this appeal is whether the claimants, who are the legal heirs of the deceased and who have filed the application for compensation under Section 166 of the Motor Vehicles Act (hereinafter will be referred to as “Act” for convenience) and having availed an interim benefit under Section 140 of the Act, are entitled to compensation finally under Section 163(A) of the Act, that too by the Tribunal suo moto converting the application filed under Section 166 to Section 163(A) of the Act.

2. For deciding this legal issue, the factual matrix of the appeal, which is necessary to know, can be stated as follows :

Deceased Kailas was the husband of respondent no.1, father of respondent nos.2 to 4 and son of respondent no.5. On 09/12/2003, he was proceeding as pillion rider on motorcycle, bearing no. MH30D7740, driven by respondent no.7 and owned by respondent no.8. The said motorcycle was insured with the appellant. One white colour Jeep coming from opposite direction, driven in high speed and in rash and negligent manner, gave dash to his motorcycle, thereby causing the accidental death of Kailas. The said Jeep fled away from the spot after the accident and could not be traced. F.I.R. came to be registered against the driver of the said unidentified white colour Jeep. Even police could not trace the said Jeep in the course of investigation.

3. At the time of accident, deceased Kailas was running the age of 30 years and on account of his untimely death, as respondents lost their only source of income, they preferred the Claim Petition No. 77/2005 before the Motor Accident Claims Tribunal, Akot, claiming the compensation from appellant and respondent nos.7 and 8 contending inter alia that respondent nos.1 to 5 have lost their only source of income and emotional support. Hence considering the age of deceased and the income, which he was earning from agriculture to the tune of Rs.120/- per day, they were entitled to get compensation of Rs.4,00,000/-.

4. This claim petition came to be resisted by respondent nos.7 and 8 and also by appellant, submitting that the sole cause of the accident was rash and negligent driving of the Jeep and hence they were not liable to pay any amount of compensation to the claimants.

5. As regards the appellant, it was further contended that though the motorcycle on which the deceased was riding as pillion seater was insured with appellant, however, it was not insured under a comprehensive policy but under an Act only policy, therefore, liability of the pillion rider being not covered thereunder, as the extra premium was not paid by the owner of the motorcycle, the claim against the insurance company was not tenable. Hence, appellant-insurance company needs to be absolved, from joint and several liability to pay compensation to the claimants.

6. In view of the rival pleadings of the parties, the Tribunal framed necessary issues at Exh.29. In support of her claim, the respondent no.1, the claimant examined herself and produced on record the relevant documentary evidence, like, the copy of F.I.R. (Exh.31), spot panchmama (Exh.32) and post mortem notes (Exh.34).

7. On appreciation of the evidence led on record, the Tribunal was pleased to hold that the cause of the accident was clearly proved to be the rash and negligent driving of the unidentified Jeep. As the driver, owner and insurance company of the said Jeep could not be traced, they were not added as respondents in the petition, though it was necessary for the claimants to do so. Hence, the Tribunal then on it’s own, suo motu converted the claim petition from Section 166 to Section 163A of the Act, and awarded compensation amount to the tune of Rs.1,64,000/- to be paid by appellant and respondent nos.7 and 8 to the claimants jointly and severally.

8. Perusal of the impugned judgment and order of the Tribunal reveals that the contention raised by learned counsel for appellant herein that as the policy was Act only policy, th