NEW INDIA ASSURANCE COMPANY Vs. KUPPUSWAMI NAIDU

JUDGEMENT

(1.) ON looking into the policy which is now marked as Ex. A-4 in this case, it is seen that the risk for which the compensation is claimed for, is not covered. It is only a third party risk that is contemplated as the subject' matter of the insurance. The relevant portion of the policy reads as follows: Section II--Liability to Third Parties...(a) death of or bodily injury to any person but except so far as it necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured and excluding liability to any person being conveyed in or on the Motor Cycle unless such person is being conveyed by reason of or in pursuance of a contract of employment.

(2.) IN this regard, Mr. R. David, learned Counsel for the appellant refers to the decision in K. Gopalakrishnan v. Sankaranarayan 1969 ACJ 34 and M. Muthu Krishna v. Brinda 1982 Sup. ACJ 428, for the proposition that the policy should cover the risk and unless there is any coverage available in the contents of the policy, then the Insurance Company is not liable. In the instant case, it is seen that it was only the pillion rider who died during the accident. He is not a third party. Furthermore, it is relevant to note that in the instant case, it is the motor cycle belonging to the 2nd respondent/4th respondent herein that was driven by the first respondent/third respondent herein and that the deceased Devarajan was sitting on the pillion of the motor cycle. Under the circumstances we find that his dependants or his legal representatives cannot claim any compensation from the Insurance Company since Ex. A-1 does not cover the risk that had actually occurred in the instant case. As already stated the pillion rider cannot be considered as one coming under the terms of third party. If The third party on the road is not a person who is accompanying in the vehicle as a pillion rider. Further in the instant case, it is significant to note that it is the person who had borrowed the motor cycle for riding the same along with the deceased pillion rider drove the same and had indulged in the rash and negligent manner which resulted in the death of the deceased. Under the circumstances this Court finds that the Tribunal is not correct in having held that the accident had occurred solely due to the rash and negligent driving of the motor cycle by the first respondent though factually it may be correct for the determination of the responsibility of the Insurance Company which had insured the vehicle in question. As already stated, the terms third party insurance contemplates only those persons and property belonging to those persons during the time of occurrence or collision. It is only in those respects we can say that it is a third party risk and it is only that kind of risk that is covered by the third party insurance. The question that arises in this appeal is as to whether the pillion rider can claim himself to be a third party so as to facilitate the claimants herein to get the compensation at the hands of the Insurance Company which had insured the vehicle?

(3.) MR . Indrasenan, learned Counsel for the 4th respondent, owner of the motor cycle submits that it is not the intention of the owner of the motor cycle to be used by the person who drove the vehicle during the time of the accident to have a pillion rider on the pillion and it was never contemplated and the evidence does not disclose that there was any such kind of contemplation on the part of the owner of the vehicle that the rider would be taking a pillion rider during the time he was using the vehicle. But on the basis of some urgency, the vehicle should have been handed over to the rider of the vehicle. Kannaiyan alias Mahadevan has been examined as RW 1. RW 2 L. Jagadesan has only stated that the claimant was not doing milk business. Even though in the counter filed by the third respondent, it is contended that the vehicle in question was not insured with it at the time of the accident, counsel for the third respondent insurance company did not challenge the evidence of R.W 1 referring to that aspect before the tribunal. The third respondent/appellant herein has also not examined any witness on its side. It is that third respondent Insurance company is the appellant before this Court. It is on their application Ex. A-4 policy has been marked now at the stage of appeal. Before the Tribunal, the third respondent/appellant herein filed a counter stating that it is an unnecessary party to the petition and that petition is also bad for want of notice under Section 80, C.P.C. All these contentions had been properly dealt with by the Tribunal and it was held that the third respondent/appellant herein is a necessary party to the application. This Court has now come to the conclusion that the Insurance Company/third respondent/appellant herein is not liable on the basis of the contents of Ex. A-4 with a particular reference to Clause (a) of the said policy holding that it was not under the contemplation of Ex. Al that the vehicle could be handed over to a third person for being driven and that person could also take a pillion rider. On a comprehensive scrutiny of the entire evidence available on record together with the contents of Ex. A-1 contract of Insurance Policy, the only conclusion that can be arrived at is that the Insurance company is not liable. But the finding of the Tribunal that there was a rash and negligent driving of the vehicle, cannot be disputed. Motor Vehicles Act is an independent enactment which also incidentally deals with the question of liability of the parties. Sections 94 and 95 of the Act are the relevant Sections which deal about these relationships and the liabilities between the rider or a driver of a vehicle and the persons who are being actually taken in that vehicle as passengers or as pillion rider, and their responsibilities. In the instant case, it has been repeatedly mentioned that the motor cycle would have been driven in a rash and negligent manner by the person to whom it has been entrusted by the owner who had insured the vehicle and the owners/would not have contemplated that the rider would take a person on the pillion though there is a seat in the pillion attached to the vehicle. It is not as if that in all cases by the riding of the vehicle, a pillion rider accompanying the rider is necessary. Though we find the entire family consisting of wife, children as well as the head of the family taking scooter in a jolly drive, it is against the law. Not more than two persons can be travelled i.e. the rider and the pillion rider. That itself is unsafe. Only one person should ride the two wheeler so that he can have full control of the vehicle The pillion is needed only in cases of emergency, namely, for taking a doctor or a compounder to cure a person from the jaws of death. In such circumstances, the pillion can be used, for taking another person. In other cases, taking a person in the pillion of a motor cycle or scooter which may even be driven at a speed of 60 to 70 miles per hour, is dangerous. What is more, if a rider of the motor cycle or a scooter who is just engaged in conversation with the pillion rider while riding the same will certainly get into trouble especially when he has got a number of obstructions in the road, and in their conversation, they may lose the grip of the road. In other words, the responsibility which the driver of a vehicle has, is something to be stressed as very important especially in a main road having full of cross roads. Once upon a time, there were side car wherein the members of the family can be taken in that side car that is attached Side cars, as a matter of routine will certainly cause accident since the existence of the same may be forgotten. It is not as if that can be compared with cycle rickshaw driver where there are also three wheels. Similarly, there are vehicles which are known as tempos. All these vehicles are nothing but a source of danger to the pedestrian as well as to the persons who are travelling in those vehicles. It is a daily occurrence that Auto rikshaws are being driven even in between two buses at a very high speed at Kamaraj Road, namely the Beach Road which extends from Santhome to Reserve Bank of India. This Court observes the above few lines by way of Obiter dicta since the acts of the instant case has given the source of materials for the above observation.