IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1897 of 2009()
1. A.E.JANARDHANAN ,S/O.NARAYANAN,
... Petitioner
Vs
1. DEVASSY,,S/O.MATHAI
... Respondent
2. K.SHAJI JOSEPH, S/O.JOSEPH
3. UNITED INDIA INSURANCE CO.LTD
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :SRI.UNNI. K.K. (EZHUMATTOOR)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :02/12/2009
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
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Dated this the 2nd day of December, 2009.
J U D G M E N T
All these appeals are preferred against the awards of
the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)
Nos.1091/00, 720/00 and 719/00. There were two other
connected O.Ps. as 1088/00 and 810/00. The amount award
in these cases are in O.P.(MV)720/00 an amount of
Rs.29,229/- is awarded in O.P.(MV)1091/00 Rs.9,546/- is
awarded and in O.P.(MV)719/00 Rs.17,145/- is awarded, in
O.P.(MV)1088/00 Rs.30,6297/- is awarded and in O.P.(MV)
810/00 Rs.4,780/- is awarded. In all these cases the
Tribunal gave a finding that these amounts have to be paid
by the insurance company and it can be get it reimbursed
from the first respondent who is the present appellant in this
case for breach of policy conditions. It is against that
decision the owner who is the first respondent has come up
in appeal.
M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
-:2:-
2. Heard the learned counsel for the appellant as well
as the insurance company. Admittedly the vehicle is a
private vehicle which was carrying passengers beyond its
loading capacity. I am informed that there are almost 7
cases of sustainment of injuries. So at least there is seven
number of persons who were travelling in the vehicle.
Therefore the question that arises for determination is,
firstly whether the policy covers the risk of a passenger in
that vehicle. Secondly, in cases of overloading what will be
the position.
3. So far as the policy is concerned it is a
comprehensive policy and the Tribunal has found that the
policy covers. But it directs reimbursement only on account
of the question of overloading. Time and again decisions are
to the effect that mere overloading of a vehicle will not
amount to fundamental breach of policy conditions so as to
exonerate the insurance company from the liability. But a
question may arise that when passengers are overloaded
beyond the capacity prescribed in the policy what will be the
M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
-:3:-
liability of the insurance company. This matter has been
precisely considered by the Hon’ble Supreme Court of India
in the decision reported in 2007 (3) KLT 993 National
Insurance Company v. Anjana Shyam). It was a case
where in a bus having a capacity of 42 passengers 90
persons were loaded and the vehicle met with an accident
resulting in death of so many persons and serious injuries to
very many persons. 90 petitions were pending before the
Tribunal. Then the Supreme Court held that when the policy
covers the risk of only a definite number of persons it may
not be correct to fasten the liability on the insurance
company for more than that and therefore followed a
practical procedure as follows.
“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.
M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
-:4:-
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
M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
-:5:-
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.”
4. So the crux of the decision is that the highest of
the permissible awards which means suppose there are
seven persons and the loading capacity is only 5 then highest
of the five awards should be taken out and added and the
entire cases arising out of that accident also has to be taken
and in proportion of these five award amounts, amount has
to be distributed among the claimants liable to be paid by
M.A.C.A. Nos.1897, 1898
and 1902 OF 2009
-:6:-
the insurance company. For the balance amounts the
claimants have to resort to and the Court has to award that
particular amount to be given by the owner of the vehicle.
So applying the dictum laid down in this decision the
compensation and the liability apportionment etc. has to be
worked out and therefore, for the said purpose, I remand the
case back to the Tribunal with a specific direction to fix the
liability of the insurance company in proportion to the
highest number of awards as well the balance liability on the
owner which accrues after the satisfaction of the highest
number of awards. This can be done after hearing both the
sides. Parties are directed to appear before the Tribunal on
7.1.2010.
MACAs. are disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-