The main legal point established in the judgment is that under an 'act only' policy, the insurance company's liability does not extend to covering the risk of the pillion rider, as per the interpretation of Section 147 of the Motor Vehicles Act and the legal principles established by the Hon'ble Apex Court.

JUDGMENT

Sandipkumar C. More, J. - The appellant - insurance company, who is original respondent No.2 in MACP No.689 of 2001, has challenged the judgment and award dated 27/03/2006 passed by the Motor Accident Claims Tribunal, Dhule (hereinafter referred to as 'the learned Tribunal') in the aforesaid claim petition. However, during pendency of this appeal the learned counsel for the appellants produced pursis alongwith death certifcates of respondent Nos.2 & 3. On perusal of those death certifcates it is revealed that respondent Nos.2 & 3 died during pendency pendency of this appeal. As such, their names were deleted under the order dated 31/01/2023 since the other dependents of the deceased are already on record.

2. On 14/01/2001, one Bhimsing while riding his motorcycle bearing Registration No. MH-18-B-6815, gave dash to a Neem tree. At that time there were two pillion riders on the said motorcycle. Out of those three persons, Bhimsing and one of the pillion riders Yogendrasing died in the said accident. It is not disputed that the aforesaid motorcycle was insured with the present appellant - insurance company for the period from 13/12/2000 to 12/12/2001 covering the date of accident. The respondent Nos.1 to 4, who are the original claimants, fled the aforesaid accident claim petition being the legal representatives of the deceased Yogendrasing. The learned Tribunal after conducting the trial, granted compensation of Rs.2,89,000/- alongwith interest @ 7.5% p.a. from the date of petition till its realization. As such, the appellant - insurance company has fled this appeal challenging the impugned judgment and award on following grounds :

a) The liability of the deceased being the pillion was not at all covered under the policy, which was an 'act only' policy and no premium was paid to cover the risk of the pillion rider.

b) Income of the deceased was considered at higher side despite there being any evidence to that effect.

3. The learned counsel for the appellant - insurance company submits that the policy of the offending motorcycle was 'act only' policy, which did not cover the risk of owner as well as pillion rider. The cover was only in respect of third party but despite, the learned Tribunal held the insurance company liable for paying the compensation. He pointed out that there were three persons on the motorcycle when it hit a Neem tree and on that count also there was a breach of policy terms. He pointed out that the learned Tribunal should have considered the notional income of Rs.15,000 p.a. of the deceased, specially when there was no documentary proof in respect of his actual income. Thus, he prayed for total exoneration of the appellant - insurance company from the liability of paying compensation.

4. On the contrary, the learned counsel for respondent Nos.1 to 4 claimants supported the impugned judgment, but in alternative also submitted that if it is held that the deceased was not covered under the policy of the motorcycle involved in the accident, then at least pay and recover order be passed considering the fact that the larger part of the compensation has already been withdrawan by the claimants long back.

5. The learned counsel for respondent No.5A i.e. the legal representatives of owner of the offending motorcycle also supported the judgment of learned Tribunal and requested to maintain the same as it is.

6. It is signifcant to note that the learned Tribunal has considered notional income of the deceased to the extent of Rs.3,000/- per month being an agriculturist. Though for such observation, the exception is taken by the learned counsel for the appellant - insurance company, but considering the date of accident being in the year 2001, the aforesaid notional income appears appropriate since the deceased was in the age group of 30 to 35 years. Therefore, the submission of the learned counsel for the appellant - insurance company as regards income of the deceased appears baseless.

7. Now, let us come to the most cr