The main legal point established in the judgment is that the risk of the pillion rider cannot be covered under the 'Act Only Policy' without any extra premium.

JUDGMENT :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant – insurance company (Original Opponent No.2), being aggrieved and dissatisfied with the judgment and award dated 31.07.2013 passed by the Motor Accident Claims Tribunal (Main), Narmada at Rajpipla in Motor Accident Claim Petition No.209 of 2010, by which the Tribunal has awarded Rs.4,17,500/- with 9% per annum interest to the claimants, by holding opponent Nos.1 and 2 i.e. owner and insurance company, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 15.07.2017 at about 7:30 p.m., the deceased-Sharmilaben Gopalbhai Vasava was returning from Rajpipla to her home by travelling on motorcycle bearing registration No.GJ21-G-1458, as a pillion rider, at that time, when motorcycle reached near turning of Village Khuta Amba, a Truck came from the opposite side and dashed with the motorcycle even though motorcycle was stationary. As a result, the deceased-Sharmilaben Gopalbhai Vasava fallen down from the motorcycle and sustained grievous injuries and died on the spot. At the time of accident, deceased was aged about 35 years old and was earning Rs.40,000/- p.m. by doing job of running flour machine and doing household works. Due to her sudden death, the applicants have suffered loss of love, affection and company beside financial loss by way of her future income. Therefore, the claimants have filed the claim petition for compensation of Rs.4,50,000/- from Opponent Nos.1 and 2 i.e. owner and insurer of the vehicle.

2.2 Summons were issued to the opponents i.e. owner and insurance company of the motorcycle by the Tribunal. The opponent No.1 had appeared through his advocate but did not choose to file any written statement. Opponent No.2-insurance company has filed its written statement at Exh.20 by denying the averments made in the claim petition and also averred that as per the contract of the insurance company, the insured has obtained the policy from insurance company which is ‘Liability Only’ policy and the risk of the pillion rider, carried in the motorcycle, cannot be covered.

2.3 The Tribunal has framed the issues and proceeded further by recording the evidence of claimant No.1-Gopalbhai Jatriyabhai Vasava, who has also been cross-examined by the insurance company. The insurance company has also examined his managerAlpesh M. Patel (assistant manager) at Exh. 43 and was cross examined by learned advocate for the applicant. The documentary evidence; like copy of F.I.R. at Exh.33, copy of Panchnama at Exh.34, copy of Inquest Panchnama at Exh. 35, copy of P.M. report at Exh.36, copy of R.C. Book of motor cycle at Exh.37, copy of driving licence of applicant at Exh.38, copy of insurance policy of vehicle at Exh.23 is produced on record.

2.4 The Tribunal, after considering the oral and documentary evidences, came to the conclusion that the claimant is entitled to get compensation of Rs.4,17,500/- with 9% per annum interest, by holding opponent Nos.1 and 2 i.e. owner and insurance company, jointly and severally.

2.5 Hence, the present appeal is filed by the insurance company before this Court.

3.1 Heard learned advocate Ms. Shikha D. Panchal for Ms. Aditi S. Raol for the appellant-insurance company has submitted that the main contention of the appellant-insurance company, in the present appeal is regarding the liability of the insurance company as the policy is issued by the insurance company, is ‘Act Only Policy’ and insurance company cannot be held liable in absence of any premium collected for the risk of pillion rider. Further, she has pointed out the insurance policy from the record of the Tribunal by indicating that no additional premium to cover the risk of the pillion rider is taken by the insurance company.

3.2 She has relied upon the decision of the Hon’ble Apex Court in the case of United India Insurance Co. Ltd. v. Tilak Singh & Ors. reported in (2006) 4 SCC 404 and also relied upon the decision of the