AJAY RAMESH BHOIR Vs. AVINASH SHANTARAM JADIAL SHIRAVANE

JUDGEMENT

(1.) RULE. Respondent No. 1 is a formal party. Ms. Barve, learned counsel, waives service for respondent No. 2. By consent rule is taken up for hearing. On 7. 9. 2002 the petitioner was travelling on pillion of motor cycle bearing No. MH 04-AV 7790 being driven by the respondent No. 1. The petitioner fell down from the motor cycle and sustained fracture of skull (right parietal) and fracture and dislocation of maxillary zygomatic joint. The motor cycle was owned by the respondent No. 1 which was insured with respondent No. 2 National Insurance Co. Ltd. The petitioner filed application under section 140 of the Motor Vehicles Act, 1988 before the Motor Accidents Claims tribunal, Thane for interim compensation. In support of his claim the petitioner relied upon the disability certificate issued by dr. Rakesh Chaturvedi showing that the petitioner has suffered 14 per cent permanent partial disability due to the accident. The petitioner, accordingly prayed for interim award of Rs. 25,000 towards no fault liability under section 140. The application under section 140 was contested by the respondents. The respondent No. 2 denied its liability, inter alia, on the ground that under the insurance policy the pillion rider was not covered. After hearing the parties, the Tribunal by its order dated 25. 9. 2003 directed the respondent No. 1 to pay compensation of Rs. 25,000 to petitioner with interest at the rate of 9 per cent per annum but rejected the application as against the insurance company on the ground that the owner has not paid any extra premium to cover the pillion rider and, therefore, the petitioner cannot claim compensation under no fault liability against the insurance company. In coming to this conclusion the tribunal has relied upon the decision of the learned single Judge of this court in new India Assurance Co. Ltd. v. Sukhdev, 2002 ACJ 1972 (Bombay ).

(2.) IN Sukhdevs case, 2002 ACJ 1972 (Bombay), the deceased was a pillion rider and the accident occurred on 16. 1. 1998, i. e. , after the commencement of the new motor Vehicles Act, 1988. The learned single Judge following the decision of the Division Bench of this court in New India assurance Co. Ltd. v. Babasaheb Anna mali, 2002 ACJ 642 (Bombay), held that expression third party would not cover a pillion rider and since the risk of pillion rider is not covered in the insurance policy even under no fault liability the insurance company cannot be saddled with the amount of compensation to be paid to the heirs of the deceased. We may mention that in the case of New India Assurance co. Ltd. v. Babasaheb Anna Mali (supra), the Division Bench was dealing with a claim under the old Act, i. e. , Motor Vehicles Act, 1939 and it followed the decisions of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. , 1977 ACJ 343 (SC) and Mallawwa v. Oriental Insurance Co. Ltd. , 1999 ACJ 1 (SC), which were also delivered under the motor Vehicles Act, 1939. The said decisions were based upon section 95 of the Motor Vehicles Act, 1939. Sections 95 (1) (a) and 95 (1) (b) (i) of the Motor Vehicles act, 1939 adopted the provisions of the english Road Traffic Act, 1960 and excluded the liability of the insurance company regarding the risk to the passengers. The section provided that a policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of the death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place. The plea that the words third party are wide enough to cover all persons except the person and the insurer was negatived by the Supreme Court in Pushpabai udeshis case (supra), as the proviso to sub-section (1) specifically provided that a policy shall not be required

(3.) THE position has completely been changed when the new Motor Vehicles Act, 1988 came into force. In section 147 of the new Act there is no limit in certain cases as contained in clause (ii) of the old Act. The corresponding provision in the old Act contains three clauses whereas now there are only two clauses. What was dropped in the new Act is the clause which excluded the coverage for death or bodily injury to persons carried in or upon the vehicle. That means such liability cannot now be excluded from the policy. Therefore when the policy of insurance is an Act policy the insurance company will not stand absolved from the liability in respect of the pillion rider of the motor cycle.