Insurance companies are not liable for injuries to gratuitous passengers under statutory policies; liability can invoke 'pay and recover' principles.

COMMON JUDGMENT:

Both these appeals arise out of the Order and Decree dated

18.12.2020 in M.V.O.P.Nos.142 and 143 of 2016 passed by the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Warangal (for short “the Tribunal”).

2. For convenience and clarity, the parties herein are referred to as they were arrayed before the Tribunal.

3. The case of the petitioners before the tribunal was that on 09.12.2009, while the respondent No.1 was driving Honda Achiever bearing No.AP-24-P-5270, the deceased and another person were going as pillion riders on the said vehicle and when they reached near Gannepalli Village bus stop at about 7:00 p.m., the respondent No.1, has driven the motor bike in a rash and negligent manner and hit the Tractor coming from the opposite direction in a rash and negligent manner, as a result the deceased along with other pillion rider and the rider of the motor bike, fell down and sustained injuries. The deceased sustained fatal injuries and died. The petitioners sought a compensation of Rs.12,25,000/-.

4. The respondent Nos.1 and 2 remained ex-parte.

5. The respondent No.3 filed counter denying averments of the petition with regard to the occurrence of the accident, age, avocation and income of the deceased. It is further contended that as per the charge sheet the accident occurred due to the rash and negligence of the driver of an unknown tractor, but not due to the negligence of the rider of the motor bike. It is further contended that the respondent No.1 has violated the terms and conditions of the policy as he allowed triple riding on his bike.

6. Based on the above pleadings, the Tribunal has framed the following issues for consideration:-

“1. Whether on 09.12.2009 at about 7:00 p.m., near Gannepalli Village Bus Stage, Narsimhulapet Mandal, Warangal District, the driver of the Honda Achiever bearing No.AP-24-P-5270 drove the same in a rash and negligence manner and caused accident, resulting in death of the deceased-Bathu Naresh?

2. Whether the petitioners are entitled for compensation. If so, at what relief?

3. To what relief ?”

7. To prove their case, the petitioners got examined PWs 1 & 2 and Exs.A1 to A7 were marked. On behalf of the respondents no oral evidence was adduced, but Ex.B1 was marked.

8. Based on the evidence on record, the Tribunal has awarded a compensation of Rs.18,44,400/-. Aggrieved by the said order and decree, MACMA.No.430 of 2021 is filed by the claim petitioners, while MACMA.No.431 of 2021 is filed by the Insurance Company.

9. Heard the submissions of Smt. Maamu Vani, learned counsel for the appellants. No representation on behalf of the respondents.

10. Learned counsel for the Insurance Company has argued that the rider of the motor bike has violated the terms and conditions by allowing two other persons on his bike and that the policy does not cover the pillion rider. She further contended that there was an unknown vehicle involved in the accident and thus, the liability is fixed on their company and that the policy is an Act Policy, thus their liability is limited, which does not cover the risk of pillion rider. She therefore, contended that their company is not liable to pay any compensation.

11 Based on the above rival contentions, this Court frames the following points for determination:

1. Whether the deceased was a pillion rider. If so, to what extent is the insurance company liable to pay compensation?

2. Whether the order and decree of the Tribunal need any interference?

3. To what relief?

12. Point No.1:

a) The contention of the appellant counsel is that since they have issued “Liability Only Policy” to the two wheeler bearing No.AP-24-P- 5270 they are not liable to pay any compensation to the pillion riders. b) A perusal of the record reveals that the dec