JUDGMENT :

(Through Video Conferencing)

This Civil Miscellaneous Appeal has been filed by the appellant Insurance Company. It is aggrieved by the impugned Judgment and Decree dated 21.12.2018 passed by the Motor Accident Claims Tribunal (Additional District Court), Hosur in M.C.O.P.No.411 of 2017.

2. By the impugned Judgment and Decree, the Tribunal has awarded a sum of Rs.9,91,000/- as compensation together with interest at 7.5% per annum from the date of claim petition till the date of deposit and costs to the first to fourth respondents.

3. The impugned Judgment and Decree is sought to be assailed by the appellant insurance company in this appeal on the ground that the deceased travelled as a “gratuitous passenger” in the insured vehicle bearing registration No.KA-02-C-4935.

4. It is submitted that the issue is no longer res-integra and is covered by a decision of the Division Bench of this Court in Bharathi Axa General Insurance Co. Ltd. Vs. Aandi and others, (2018) 2 TN MAC 751 and few other decisions of the Hon’ble Supreme Court and therefore the appeal filed by the appellant-Insurance Company deserves to be allowed.

5. Defending the impugned order Judgment and Decree, learned counsel for the first to fourth respondents / claimants submitted that the Supreme Court has taken note of the hardship caused and is allowed the claim petition is in the following cases:-

“i. Shivraj Vs. Rajendra and another, (2018) 10 SCC 432.

ii. Shivawwa and another Vs. Branch Manager, National India Insurance Company Limited and other, (2018) 5 SCC 762.

iii. Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others, (2018) 9 SCC 650 and

iv. Anu Bhanvara etc. Vs. Iffco Tokio General Insurance Co. Ltd., (2019) SCC Online SC 1006.”

6. It is submitted that in all these cases despite the deceased had travelled in goods carriage vehicle, pay and recovery is ordered.

7. I have considered the arguments advanced by the learned counsel for the appellant Insurance Company and the learned counsel for the first to fourth respondents. I have perused the impugned Judgment and Decree and the decisions of the Hon’ble Supreme Court and that of this Court.

8. The Division Bench of this Court in Bharathi Axa General Insurance Co. Ltd. Vs. Aandi and others, (2018) 2 TN MAC 751 has distinguished the decision of the Hon’ble Supreme Court in Shivraj Vs. Rajendra and another, (2018) 10 SCC 432 and has held that the decision of the Hon’ble Supreme Court in National Insurance Company Limited Vs. Swaran Singh, (2004) 3 SCC 297 will not apply to the cases of gratuitous passengers.

9. Incidentally, I have also allowed the appeal in New India Assurance Co. Ltd. Vs. Mohamudha Fazila & others, 2020 SCC Online Mad 9011 : (2020) 2 TNMAC 777 filed by Insurance Company and in The National Insurance Company Limited Vs. E.A. Palanisamy (Died) and Others in C.M.A.No.1958 of 2010.

10. Today, I have also incidentally pronounced a detailed order in C.M.A.No.2613 of 2019 in an appeal filed by M/s.Bajaj Alliance General Insurance Co. Ltd. vs. Thangaponnu & 2 others, wherein, I have exhaustively dealt with the law on the subject based on the interpretations placed by the Hon’ble Supreme Court in New India Insurance Co. Ltd. vs. Satpal Singh and Another, (2000) 1 SCC 237, New India Assurance Co. Ltd. vs. Asha Rani and others, (2003) 2 SCC 233 and in National Insurance Company Limited vs. Baljit Kaur, (2004) 2 SCC 1. I have also referred to decision of the Full Bench of this Court in Branch Manager, United India Insurance Co Ltd. Vs. Nagammal and two others, 2009 (1) CTC 1.

11. In Asha Rani case, Baljit Kaur case and that of the Full Bench of this Court in Nagammal case, it has been held that there is no scope for ordering pay and recovery after 1994 amendment where there is there is no statutory liability to cover the risk.

12. The decision of the Hon’ble Supreme Court in Swaran Singh case referred to supra also does not apply in the of a death or injury to an unauthorised