The main legal point established is that under the Motor Vehicles Act, the liability of an insurance company is determined based on the terms of the policy and the status of the injured party, and in this case, the deceased being a gratuitous occupant was not covered under the 'act only policy'.

JUDGMENT :

Vibha Kankanwadi, J.

Present appeal has been filed by original respondent No.2-Insurance Company challenging the judgment and award passed in M.A.C.P. No.175 of 2012 (Old M.A.C.P. No.04/2009) by Motor Accident Claims Tribunal, Vaijapur dated 26.08.2013 whereby petition under Section 163-A of the Motor Vehicles Act, 1988 came to be partly allowed with proportionate costs against the insurance company.

2. The original claimants who are the parents, brother and sisters of one Ganesh Raju Shelke had come with the case that deceased Ganesh was proceeding on a motor cycle bearing registration No. MH-20-BB-5895 on 01.09.2008 towards village Sawangi from Lasur Station. At that time, he was dashed by another vehicle bearing registration No. MH-20-AU-5898 which had come in opposite direction. The said motor cycle was driven by one Santosh Pawar. According to the claimants, Ganesh was driving the motor cycle in normal speed. However, after the accident, he had sustained multiple injuries on his head and other parts of the body. He died on the spot itself. Respondent No.1 is the owner of the motor cycle which was driven by the deceased and the said motor cycle was insured with respondent No.2. Respondent No.3 is the owner of the other motor cycle bearing No. MH-20-AU-5898. After the accident, one Ramdas Shejul had reported the accident to police station and both the drivers i.e. deceased as well as said Santosh Pawar have been prosecuted by police. Claimants had claimed compensation of Rs.4,00,000/- under the said petition under Section 163-A of the Motor Vehicles Act.

3. Respondent No.1 failed to file written statement. Respondent Nos.2 and 3 have filed separate written statements. They have denied age and other particulars of Ganesh. They have also denied the involvement of both the vehicles in the accident. It has been contended by the insurance company that both the drivers had no valid and effective driving licence to drive respective motor cycles. It is contended that there is breach of terms of policy by respondent No.1. It was also contended by the insurance company that the insurance policy which was taken by respondent No.1 was "liability only policy" which does not cover any occupant who is gratuitously occupying the motor cycle. The claimants themselves have come with the case that with the consent of respondent No.1, the deceased was driving the said motor cycle. Under such circumstance, risk of the deceased was not covered by respondent No.2.

4. Respondent No.3 has contended that there was no negligence on the part of the driver of his motor cycle, but the accident took place due to the sole negligence on the part of deceased.

5. Taking into consideration these rival contentions issues have been framed. Claimants have laid oral as well as documentary evidence. The insurance company has examined its officer and produced a policy on record. Taking into consideration the evidence and after hearing both sides, the learned tribunal has come to the conclusion that both the said motor cycles were involved in the accident, both the drivers were having valid and effective driving licence to drive the motor cycle, deceased was not travelling from the said motor cycle gratuitously, petition under Section 163-A of the Motor Vehicles Act was maintainable and therefore, the claimants are entitled to get compensation. Compensation of Rs.3,94,000/- together with interest at the rate of 7.5% per annum from the date of the petition till actual realisation of the amount has been granted. Only respondent Nos.1 and 2 have been held liable to pay compensation jointly and severally. Hence, present appeal by original respondent No.2.

6. Heard learned Advocate Mr. A.B. Kadethankar for the appellant-Insurance Company and learned Advocate Mr. A.R. Borulkar for respondent Nos.1 to 5-Original claimants. Advocate for respondent Nos. 6 and 7 though served, failed to appear when the submissions were heard.

7. Learned Advocate appearing for the appellant