BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P(NPD)(MD)Nos.353 to 364 of 2006 and C.M.A.(MD)Nos.665 to 664 and 675 of 2006 C.R.P(NPD)(MD)No.353 of 2006: The Branch Manager, The New India Assurance Company Ltd., 3, Main Road, Dindigul. .. Petitioner Vs 1.Mohammed Fathima 2.Amaravathi 3.The Proprietor, M/s.Palanimurugan Transport Co. Ltd., 50, Spencers Compound, Dindigul. 4.The Branch Manager, Oriental Insurance Co. Ltd., Salai Road, Dindigul. .. Respondents
Prayer in C.R.P(NPD)(MD)No.353 of 2006
Civil Revision Petition filed under Article 227 of the Constitution of India,
against the Judgement and Decree dated 28.10.2005 passed in MCOP.No.530 of 2005
by the learned Motor Accidents Claims Tribunal-cum-the Principal District Judge, Dindigul.
!For Appellant … Mr.S.Ramachandran
^For Respondent No.1 … Mr.R.Vijayakumar
For Respondent No.2 … Mrs.N.Juliet Latha
for Mr.K.Dominic Roy Prabhakar
For Respondent No.3 … No appearance
For Respondent No.4 … Mr.C.Ramachandran
:COMMON ORDER
The above Civil Revision Petitions and Civil Miscellaneous Appeals are
focussed as against the Common Judgement and Decree dated 28.10.2005 passed in
MCOP.Nos.426, 427, 448, 449, 524 to 535, 545, 546, 548, 620, 621, 687 and 699 of
2005 by the learned Motor Accidents Claims Tribunal-cum-the Principal District
Judge, Dindigul.
2. Heard both sides.
3. The Tribunal vide common Judgement dated 26.10.2005 awarded
compensation as under:
Sl.No. M.C.O.P. Claimants Compensation awarded
Nos.
1. 426 of 2005 Salha Beevi Rs. 50,000/-
2. 427 of 2005 1.Salha Beevi Rs.1,64,000/-
2.Sikkandar
3. 448 of 2005 Jansi Rani Rs. 7,000/-
4. 449 of 2005 Kannamani Rs. 6,000/- 5. 524 of 2005 Minor Bowmitha Banu Rs. 9,000/- 6. 525 of 2005 Mahaboob Beevi Rs. 97,000/-
7. 526 of 2005 Masootha @ Masootha Begam Rs. 28,100/-
8. 527 of 2005 Minor Prabaharan Rs. 50,000/-
9. 528 of 2005 Jameela Beevi Rs. 35,000/-
10. 529 of 2005 1.Sarrammal (died) Rs. 40,000/-
2.Abdul Ajees @ Abdulla
11. 530 of 2005 Mohammed Fathima Rs. 9,000/-
12. 531 of 2005 Anantha Raj Rs. 9,000/-
13. 532 of 2005 Sabeena Banu Rs. 44,000/-
14. 533 of 2005 Dilsath @ Dilsath Begam Rs. 10,000/-
15. 534 of 2005 Abitha Beevi @ Abitha Begam Rs. 31,000/-
16. 535 of 2005 Minor Pradeep Rs. 6,000/- 17. 545 of 2005 Rajammal Rs. 8,000/- 18. 546 of 2005 Abdullah Rs. 6,000/- 19. 548 of 2005 Jayalakshmi Rs. 8,000/- 20. 620 of 2005 Rabiya Begam Rs. 7,000/- 21. 621 of 2005 Syed Ammal Rs. 9,000/- 22. 687 of 2005 John Williams Rs. 60,000/- 23. 699 of 2005 1.Thanalakshmi Rs.4,29,000/- 2.Minor Divya 3.Minor Janani 4.Minor Perinbaraja 5.Seeniammal
4. All the twelve Civil Revision Petitions and eleven Civil Miscellaneous
Appeals have been taken together for hearing as the facts are to the effect that
in the van bearing Registration No.TN55/A.0661 having capacity of 12+1, twenty
three passengers travelled quite against the capacity of the van and it so
happened that the van and the bus got collided and the responsibility was fixed
on the driver of the van and correspondingly the insurer of the van viz., the
New India Assurance Company Ltd., Dindigul has been ordered to pay the award
amounts along with the owner of the van jointly and severally. As such, twenty
three awards have been passed by the Tribunal.
5. Being aggrieved by and dissatisfied with the said awards passed by the
Tribunal these Civil Revision Petitions and Civil Miscellaneous Appeals have
been filed by the New India Assurance Company Ltd., Dindigul. Hence, all these
Civil Revision Petitions and Civil Miscellaneous Appeals have been taken
together for disposal.
6. Heard both sides.
7. The grievance of the appellant viz., the New India Assurance Company
Ltd., Dindigul is that oblivious of the decision of the Hon’ble Apex Court in
National Insurance Co. Ltd. v. Anjana Shyam & Others reported in 2007(4)CTC 593,
the Tribunal simply mulcted the appellant/Insurance Company to pay the
compensation to all the claimants, the full award amount ignoring that the van
was overloaded. An excerpt from the said decision cited supra would run thus:
“In spite of the relevant provisions of the statute, insurance still
remains a contract between the owner and the insurer and the parties are
governed by the terms of their contract. The statute has made Insurance
obligatory in public interest and by way of social security and it has also
provided that the insurer would be obliged to fulfil his obligations as imposed
by the contract and as overseen by the statute notwithstanding any claim he may
have against the other contracting party, the owner, and meet the claims of
third parties subject to the exceptions provided in Section 149(2) of the Act.
But that does not mean that an insurer is bound to pay amounts outside the
contract of insurance itself or in respect of persons not covered by the
contract at all. In other words, the insured is covered only to the extent of
the passengers permitted to be insured or directed to be insured by the statute
and actually covered by the contract. The High Court has considered only the
aspect whether by overloading the vehicle, the owner had put the vehicle to a
use not allowed by the permit under which the vehicle is used. This aspect is
different from the aspect of determining the extent of the liability of the
Insurance Company in respect of the passengers of a stage carriage insured in
terms of Section 147(1)(b)(ii) of the Act. We are of the view that the
Insurance Company can be made liable only in respect of the number of passengers
for whom Insurance can be taken under the Act and for whom Insurance has been
taken as a fact and not in respect of the other passengers involved in the
accident in a case of overloading.
Then arises the question, how to determine the compensation payable or how
to quantify the compensation since there is no means of ascertaining who out of
the overloaded passengers constitute the passengers covered by the insurance
policy as permitted to be carried by the permit itself. As this Court has
indicated, the purpose of the Act is to bring benefit to the third parties who
are either injured or dead in an accident. It serves a social purpose. Keeping
that in mind, we think that the practical and proper course would be to hold
that the Insurance Company, in such a case, would be bound to cover the higher
of the various awards and will be compelled to deposit the higher of the amounts
of compensation awarded to the extent of the number of passengers covered by the
Insurance Policy. Illustratively, we may put it like this. In the case on
hand, 42 passengers were the permitted passengers and they are the ones who have
been insured by the Insurance Company, 90 persons have either died or got
injured in the accident. Awards have been passed for varied sums. The Tribunal
should take into account, the higher of the 42 awards made, add them up and
direct the Insurance Company to deposit that lump sum. Thus, the liability of
the Insurance Company would be to pay the compensation awarded to 42 out of the
90 passengers. It is to ensure that the maximum benefit is derived by the
Insurance taken for the passengers of the vehicle, that we hold that the 42
awards to be satisfied by the Insurance Company would be the 42 awards in the
descending order starting from the highest of the awards. In other words, the
higher of the 42 awards will be taken into account and it would be the sum total
of those higher 42 awards that would be the amount that the insurance Company
would be liable to deposit. It will be for the Tribunal thereafter to direct
distribution of the money so deposited by the Insurance Company proportionately
to all the claimants, here all the 90, and leave all the claimants to recover
the balance from the owner of the vehicle. In such cases, it will be necessary
for the Tribunal, even at the initial stage, to make appropriate orders to
ensure that the amount could be recovered from the owner by ordering attachment
or by passing other restrictive orders against the owner so as to ensure the
satisfaction in full of the awards that may be passed ultimately”.
8. The point for consideration is as to whether the Tribunal was justified
in mulcting the appellant/ Insurance Company to pay the entire award amounts
contemplated in the twenty three awards oblivious of the decision of the Hon’ble
Apex Court in National Insurance Co. Ltd. v. Anjana Shyam & Others reported in
2007(4)CTC 593?
9.On point:
Heard both sides.
10. The learned counsel for the appellant/ Insurance Company would
reiterate the above position of law.
11. The learned counsel for the claimants in all fairness would submit
that they are having no contrary argument to put forth to differentiate the
presence cases from the dictum of the Hon’ble Apex Court. The learned counsel
for the first respondent/owner of the vehicle is having no contrary argument for
that matter. Hence, in these circumstances, the only point which this Court has
been called upon to decide is as to whether the appellant/Insurance Company
viz., the New India Assurance Company Ltd., Dindigul so to say the insurer of
the van, can be directed to pay the entire award amounts contemplated in the
twenty three awards, even though the said van was overloaded with passengers.
12. It is obvious that the appellant/Insurance Company cannot be ordered
to pay the entire award amounts in view of the aforesaid decision of the Hon’ble
Apex Court. Accordingly, the following order is passed:
The appellant/Insurance Company shall take into account the higher of the
twelve awards out of the twenty three awards and add the total amount of that
twelve higher awards and the appellant/Insurance Company shall deposit the same
in the Tribunal. The Tribunal shall divide proportionately the said sum among
the awardees in the twenty three cases proportionately and the awardees, in
respect of remaining amounts in the awards are at liberty to proceed as against
the first respondent, viz., the owner of the van by filing Execution Petitions
respective as such. No other points urged before me.
13. With the above direction, these Civil Revision Petitions and Civil
Miscellaneous Appeals are partly allowed and the awards of the Tribunal are
confirmed, which shall carry interest at the rate of 7.5% as directed by the
Tribunal. No costs. Consequently, connected Miscellaneous Petitions are
closed.
smn
To
The Motor Accidents Claims Tribunal cum
the Principal District Judge, Dindigul.