AND

AWARD

DATED

26.6.2010 PASSED IN MVC NO.1423/2004 ON THE FILE OF II

ADDITIONAL

DISTRICT

JUDGE

&

MEMBER,

MACT-III,

DAKSHINA

KANNADA,

MANGALORE,

AWARDING

A

COMPENSATION OF RS.71,960/- WITH INTEREST @ 6% P.A.

FROM THE DATE OF PETITION TILL REALISATION.

THIS MFA COMING ON FOR HEARING THIS DAY,

THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is at the instance of insurance company

calling in question the correctness of the judgment and award

dated 26.07.2010 passed in MVC No.1423/2004 by the II

Addl. District Judge & Member, MACT-III, Dakshina Kannada,

Mangalore, to the extent of fastening the liability to pay the

compensation on it.

3

A claim petition seeking compensation was filed

on the allegation that on 31.07.2004 at about 8.45 p.m. when

claimant was proceeding in Bajaj Chetak Scooter No.CTA

8277 as a pillion rider and the scooter reached near Petrol

pump at Padupanambur Village, on account of rash and

negligent riding of the scooter by its rider, scooter fell on the

road and claimant suffered fracture of his left leg.

Before the learned Claims Tribunal owner of the

offending scooter remained absent and he was placed

exparte. The appellant-insurance company contested the

proceedings by filing detailed written statement denying the

material averments made in the claim petition.

4.

Subsequently, one Ashok, S/o. Late Sundara

Poojary was brought in as respondent No.3 and even though

he entered appearance through a learned counsel, did not

choose to file any written statement.

5.

During the trial claimant examined himself as PW1

and Exs.P-1 to P-9 were marked. Respondents did not

4

examine any witness and policy of insurance was marked as

Ex.R-1.

6.

Learned

counsel

for

the

appellant-insurance

company

candidly

submits

that

he

does

not

dispute

occurrence of accident and injuries suffered by the claimant

as a pillion rider and his only grievance is that even though

offending scooter was covered with an Act policy and no

additional premium was paid to cover the risk of pillion rider,

learned Tribunal merely on account of the fact that there was

policy coverage for the scooter, has proceeded to fasten the

liability on the insurance company. Therefore, he submits

that in view of the series of decisions of Hon’ble Supreme

Court, more importantly the one in ORIENTAL INSURANCE

CO. LTD. vs. SUDHAKARAN K. V. reported in 2008 ACJ

2045 (SC) and NATIONAL INSURANCE CO. LTD vs

BALAKRISHNAN & ANOTHER reported in (2013) 1 SCC

731, the direction in the award to the extent of fastening

liability on the insurance company is required to be set aside

and the appeal is entitled to be allowed to the said extent.

5

7.

Learned counsel appearing for respondent No.3

has remained absent.

8.

I have given anxious consideration to

the

submissions made by the learned counsel for the appellant

and I have carefully perused the records.

9.

Ex.R-1 is the policy of insurance issued by the

appellant-insurance company in respect of the offending

scooter bearing registration No.CTA 8277. Case of the

claimant is that on 31.07.2004 while he was a pillion rider of

the scooter, on account of rash and negligent riding of the

scooter he fell on the road and suffered certain injuries.

10.

Perusal of Ex.R-1 shows that no additional

premium was paid by the owner of the scooter to cover the

risk of pillion rider. Hon’ble Supreme Court in the case of

ORIENTAL INSURANCE CO. LTD. vs. SUDHAKARAN K. V.

reported in 2008 ACJ 2045 (SC), has observed as follows:

“19.

The law which emerges from

the said decisions is: (i) the liability of the

insurance company in a case this nature is

not extended to a pillion rider of the motor

vehicle unless the requisite amount of

premium is paid for covering his/her risk;

(ii) the legal obligation arises under section

6

147 of the Act cannot be extended to an

injury or death of the owner of vehicle or

the pillion rider; and (iii) the pillion rider on

a two-wheeler was not to be treate