An Act policy under the Motor Vehicles Act, 1988 does not cover the risk of death or bodily injuries to gratuitous passengers, such as pillion riders.

JUDGMENT :

The insurance company is on appeal against the judgment and order, dated 27.08.2013 passed by the learned Member, MACT No.2 Kamrup, Guwahati in MAC Case No. 800/2009.

2. The case of the claimant is that on 03.09.2005, the claimant was travelling in a motor cycle bearing No. AS-12B-0396 from Tezpur side towards Dhekiajuli as a pillion rider. When the said vehicle reached Gotonga over NH -52, the driver lost his control and as a result of which the motorcycle knocked a lamb. Due to the alleged accident, the motorcycle fell down and the claimant sustained grievous injuries on his person. The allegation of the claimant is that the accident occurred due to rash and negligent driving by the driver of the offending motorcycle. After the accident, the injured was shifted to Kanaklata Civil Hospital, Tezpur for treatment and thereafter he had undergone treatment in different hospitals of Assam and Patna.

3. The learned tribunal after recording evidence of witnesses and considering other documents available in the records, awarded compensation to the claimant/respondent No. 1 amounting to Rs.1,16,000/.

4. Learned counsel for the appellant has argued that admittedly the claimant had traveled as a pillion rider in a motorcycle and policy of the said motorcycle was an Act policy and no additional premium was paid by the owner /insured for the coverage of a pillion rider and as such the award is bad in law and is liable to be set aside.

5. It is also the submission of learned counsel for the appellant that insurance company has proved the insurance policy vide Exhibit –A before the tribunal which is an Act policy and there is no liability on the part of the insurance company towards the claim of the pillion rider. The Act policy does not cover the risk of death or bodily injuries to the gratuitous passengers. The liability of the insurance company can be determined only on the basis of the premium collected and in the absence of additional premium, the insurance company is not liable to pay compensation. |The tribunal erred in holding that respondent No.1 i.e. the claimant is the third party and failed to note that the occupant of the vehicle cannot be treated as third party.

6. Learned counsel for the appellant also submitted that the learned Member, MACT did not consider the evidence of Tarun Azad Narzary who was examined as DW-1 before the Tribunal and who categorically stated that the insurance policy of the motorcycle was an Act policy and in the said policy, there was no coverage for the pillion rider.

7. Learned counsel for the appellant also submitted that the learned tribunal proceeded to hold the appellant insurer responsible to pay the compensation merely because as the policy was issued and the same was in force on the date of the accident, by completely overlooking that the claimant was nothing but a gratuitous passenger and he was not covered under the policy.

8. In support of his submission, learned counsel relied on the following case laws:

1. United India Insurance Company Ltd., Shimla vs. Tilak Singh & Ors, reported in 2006 (4) SCC 404.

2. New India Assurance Company Ltd. Vs. Manasha Barman & Ors reported in MAC Appeal No. 274/2006, of this court, dated 28.09.2012.

9. None appears for the respondent No.1/claimant. As the matter is pending in this court since 2014, after hearing the learned counsel for the appellant, the case was fixed for delivery of judgment without further allowing time to the respondent’s side to argue in the case.

10. The only question involved in this appeal is that whether the claimant is entitled for compensation though he was travelling as pillion rider and the policy of the vehicle was an Act policy!

11. In New India Assurance Company Ltd. Vs. Asha Rani 2003 ACJ 1 (SC), it has been noted as follows:-

“ Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states th