Under a 'liability only policy', the insurer is primarily liable to pay compensation to gratuitous passengers or inmates, notwithstanding the lack of additional premium, with the right to recover the paid amount from the insured owner of the vehicle.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE T.M. NADAF)

The insurer is before us in this appeal calling in question the judgment and award dated 27.06.2019 in MVC.No.855/2016 passed by the Additional Senior Civil Judge and JMFC and Motor Accident Compensation Tribunal at Putturu, D.K¹Tribunal, on the ground of liability.

2. The parties are referred to as per their ranking before the Tribunal.

3. The brief facts leading to filing of the present appeal are as under:

In an accident occurred on 14.12.2015 at about 10.00 a.m, the deceased Nagaraja while proceeding towards his house at Hirebandady of Puttur Taluk, in the Maruthi car belonging to respondent No.1, who was driving the same in rash and negligent manner and when they reached near Attatodu of Nilakal, Pattaman Titta District, the driver of the car i.e., respondent No.1 lost control over the vehicle due to which the car capsized on the right side water canal and in the accident, the deceased Nagaraj sustained multiple grievous injuries all over the body. Immediately he was shifted to Nelakal Government Hospital and thereafter taken to Government Hospital Pattaman Titta and on the way to the hospital he succumbed to the injuries. The deceased was aged 30 years and was working as an agriculturalist so also a coolie and was earning Rs.15,000/- per month and due to the untimely death of Nagaraja, the claimants have lost love and affection as well as financial support to the family and accordingly they filed claim petition seeking Compensation of Rs.35,00,000 along with interest of 16% per annum.

4. Upon notice both the respondents appeared and filed their respective statement of objections through their counsel. Respondent No.1 though disputed the claim petition averments regarding the age, occupation and compensation claimed, but has taken the contention that since the vehicle is insured with the respondent No.2-Insurer, in any event, the Insurer is liable to indemnify. Whereas respondent No.2, apart from denying the claim petition averments, taken a specific contention regarding the driving license and violation of policy conditions, so also the contention that the deceased was travelling as a paid passenger and since there is no coverage, as the policy being act policy, i.e., 'liability only policy', the insurer is not liable to pay compensation.

5. The Tribunal after considering of entire evidence allowed the claim petition granting compensation of Rs.18,29,000/- with interest at the rate of 7% per annum from the date of petition till realization. However, considering the fact that the deceased was not a fair paid passenger and he being the friend of the owner, they had gone to a Shabarimale and while returning back, met with the accident and in view of the fact that the Act beneficial enactment, respondent No.2 is liable to pay the compensation. It is this judgment and award passed by the Tribunal is called in question mainly on two grounds by the respondent-Insurer.

6. Heard Sri.A.M.Venkatesh, learned counsel along with Sri.Lakshmi Narasappa, learned counsel appearing for the appellant, Ms.Vanchika Mathur, learned counsel for Sri.Suyog Herele and Sri.Nishanth S.K, learned counsel for respondent Nos.1 to 3 and Sri.Manoj.K, learned counsel for Sri.Hareesh Bhandary.T, learned counsel for respondent No.4.

7. Sri.A.M.Venkatesh argued firstly, that since the policy issued is act policy i.e., 'liability only policy', the vehicle being a private car, in the absence of any special premium paid, the inmate of the car is not covered under the insurance policy, as such the Ins