IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 MACA.No. 1897 of 2009(C) -------------------------------- OPMV.1091/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S)/1ST RESPONDENT: ---------------------------------------- A.E.JANARDHANAN ,S/O.NARAYANAN, MALANKARA HOUSE, NEAR MALANKARA CHURCH VILAMBUKANDAM DESOM, EACHOM PO, PIN 670 721. BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA RESPONDENT(S)/PETITIONER & RESPONDENTS 2 &3 : ---------------------------------------------------------------- 1. DEVASSY,S/O.MATHAI CHOORATHOTTIYIL HOUSE, VILAMBUKANDOM, EACHOM PO, WAYANAD. 2. K.SHAJI JOSEPH, S/O.JOSEPH KALAMBUKATTIL HOUSE, VILAMBUKANDOM, EACHOM PO, WAYANAD. 3. UNITED INDIA INSURANCE CO.LTD REP BY ITS MANAGER, MTPC OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, KOCHI-16 ADV. SRI.UNNI. K.K. (EZHUMATTOOR) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2009, ALONG WITH MACA NO. 1898 OF 2009 AND MACA NO. 1902 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. Nos.1897, 1898 and 1902 OF 2009 = = = = = = = = = = = = = = = 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/-