JUDGEMENT AND ORDER [ORAL]

Heard Mr. S. Dutta, learned counsel, for the appellant, and Mr. R.K. Agarwal, learned counsel, for the respondents.

2. The respondents have filed appeals seeking compensation for the death of the husband of the respondent in MAC Appeal No.63/2008 and in MAC Appeal 62/2008, claiming compensation for the injury sustained by her son.

3. The deceased, injured and three others were travelling in an ambassador car and on account of rash and negligent driving, the vehicle hit against a tree on the road side resulting in death of one person and injuries to others.

4. Before the Tribunal, five claim petitions were filed separately by the injured and the wife of the deceased. The Tribunal has allowed the claim petitions directing the insurer to pay compensation to the claimants. The insurer, aggrieved by the said order, has filed these appeals.

5. In MAC Appeal No.133/99 and 134/99, the injured was awarded Rs.9,000/- as compensation. In MAC Appeal 132/99, Rs.4,000/- was awarded to the injured as compensation, in MAC Appeal No.130/99, Rs.6,10,000/- was awarded to the claimant as compensation for the death of the husband of the claimant and in MAC Appeal No.131/99, Rs.72,632/- was awarded to the injured as compensation.

6. It is the contention of the insurer that the ambassador car is a private vehicle and their liability to pay compensation for the death and the injuries of the inmates of the car is not covered by the Act policy and there is no contractual liability to cover the liability of the inmates of a private car by taking any special premium. It is, therefore, submitted that the insurer is not liable to pay any compensation. The award made against the insurer in MAC Appeal No.131/99 relating to MAC 63/2008 and MAC Appeal No.130/99 relating to MAC No.62/2008 is, therefore, bad in law.

7. It is the contention of the respondents that the insurer has paid the compensation awarded in MAC Appeal 132/99, 133/99 and 134/99. Therefore, on parity, the insurer cannot avoid the liability to pay compensation in these cases also.

8. The contention of the respondents that in other three cases, the insurer has paid compensation and, therefore, the insurer cannot resist the award in the cases, in question, appears to be an untenable contention. Merely because amounts are paid in other three cases, where the quantum involved is marginal and when there is no legal liability, it cannot be argued that the insurer cannot resist the award in the appeals. When the insurer wrongly or under mistaken impression had paid compensation awarded in the connected cases, it cannot stop the insurer to challenge the award in the other cases when there is no legal liability. The question of liability of the insurer in cases of passengers in a private vehicle is settled by the Supreme Court in New India Assurance Co. Vs. Asha Rani and others (2003) 2 SCC 228. A Division Bench of this Court also, in New India Assurance Co. Vs. Phelisa Bakai, referring to the decision of the Supreme Court in Asha Rani (supra), has held that the liability of the passengers travelling in a private vehicle is not covered by an act policy. The liability to pay compensation, on the part of the insurer, does not arise unless there is a special contract and payment of special premium in that regard.

9. In the present case, the policy produced is an Act policy and no special premium is paid to cover the risk of the inmates of the vehicle.

10. In that view of the matter, the award made against the insurer by the Tribunal is set aside. The compensation awarded is, however, payable by the owner of the vehicle. The appeals are accordingly allowed. The amount of compensation deposited, if not disbursed to the claimant, shall be refunded to the appellant.

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