IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MACA.No. 204 of 2007() ---------------------------------- OP.(MV) NO.1539/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. ...... APPELLANT/3RD RESPONDENT: ---------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: ---------------------------- 1. PRABHEESH K.S., AGED ABOUT 28 YEARS, S/O. SUKUMARAN, KANDAMPULLY HOUSE, VELLITHIRUTHY, MARATHMKODE, (VIA) KUKNNAMKULAM, THRISSUR DIST. 2. K. SARASWATHY VIJAYAN, W/O. P.D.VIJAYAN, L.I.C. AGENT, PUTHOOR HOUSE, KURAVANNUR, P.O. VELLATTANJOOR, THRISSUR DIST. 3. BIJU P.V., AGED 28 YEARS, S/O. VIJAYAN, PUTHOOR HOUSE, KURAVANNUR, P.O. VELLATTANJOOR, THRISSUR DIST. BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== M.A.C.A. No.204 OF 2007-F ===================== Dated this the 12th day of June 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)No.1539 of 2001, whereby the claimant was awarded a total compensation of Rs.68,300/- and the liability was fixed on the insurance company to pay the amount with 7% interest. It is against that decision the insurance company has come up in appeal. 2.The contention raised by the learned counsel for the appellant in accordance with the pleadings is that a motor bike is only expected to carry two persons and the accident had taken place on account of the factum that 3 persons were riding in the bike and therefore they have caused the accident. Secondly it is contended that the insurance company shall not be mulcted with the liability to compensation when there is a clear breach of law which will amount to breach of policy conditions. So far as the first point is concerned, i.e. regarding the contributory negligence it is not the number of persons travelling that gives the presumption regarding negligence, it is the act of rash or negligence that will create negligence. It MACA 204/2007 -:2:- has also to be stated that the pillion rider is not in control of the vehicle and he is only a passenger and therefore he cannot have effective control over the vehicle. The Madhya Pradesh High Court had the opportunity to consider this question in the decision reported in Leela Bai and others v. Munna Lal and others(1997(2) TAC 663(MP). The said court held that just because 3 persons happened to ride on a moped, contributory negligence could not be attached to the rider. So far as the question of negligence is concerned, the Tribunal considered the matter and held that the 2nd respondent lost the control of the vehicle and had capsized. So one cannot hold that the pillion rider has contributed to the accident. So, I do not find any ground to interfere with the decision of the Tribunal. 3. The next question is regarding the liability. At the outset, I may like to point out that this decision was rendered prior to the judgment in Tilak Singh's case(2006(2) KLT 884(SC) and the insurance company has not raised a contention that the policy does not cover a pillion rider. The contention now raised before me is that since there is a violation of law by carrying more number of persons, there is breach of policy conditions and therefore the insurance company cannot be made liable to pay the amount. It has been held in very many decisions that overloading of a vehicle does not ipso facto amount to breach of policy conditions; at the most it is only a MACA 204/2007 -:3:- violation of law. When more number of passengers than its capacity is loaded in the vehicle and when the accident takes place, the Apex Court held that since the coverage of the policy will be only in relation to certain number of persons, the Tribunal shall take the maximum amount awarded which will cover such persons and then apportion it among all. So it has to be held that just because instead of two persons there are 3 persons in a vehicle it will not totally exonerate the insurance company from making the payment. But the restriction will be only that if all the three are injured then only if two is covered, take the maximum amount that is awarded in two cases, then direct the insurance company to deposit and then apportion it among the 3. So, mere overloading of a vehicles does not amount to breach of policy conditions because it does not go to the root of the matter and if there is violation of law, there are enabling provisions under the Act for punishing them and the insurance company cannot get itself exonerated from the liability on that ground. Therefore, I am not able to accept the contention of the learned counsel for the appellant. Therefore, appeal fails and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/- MACA 204/2007 -:4:-