IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 MACA.No. 2497 of 2009(A) ----------------------- OPMV.393/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 2ND RESPONDENT ------------------------------------- THE ORIENTAL INSURANCE CO.LTD, KOTHAMANGALAM,REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE,ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): IST RESPONDENT ---------------------------------------- SHAJAN,S/O.YOYAKKI,KANALUKUDIYIL, PUTHENPURA HOUSE,IRUMPUPALAM,VALARA.P.O, ADIMALY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2497 OF 2009 = = = = = = = = = = = = = = = Dated this the 15th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)393/05. The claimant has been awarded a compensation of Rs.52,276/-. He was one among the passengers in an auto rickshaw which capsized. It is the case of the insurance company that the auto rickshaw was overloaded with 10 passengers and therefore there is breach of policy conditions and so the insurance company is entitled to get reimbursement at least from the owner. The question whether the insurance company can be totally exonerated from the liability or to get reimbursement will depend upon the breach of policy conditions. Mere overloading cannot be said to be a fundamental breach of policy condition. The Hon'ble Apex Court has considered a case where a bus which can carry 42 passengers carried 90 passengers and had met with an accident and claim petitions had been filed by all. M.A.C.A. 2497 OF 2009 -:2:- After elaborately considering the matter the Apex Court held that under the insurance contract since there is a liability to cover 42 persons highest of 42 persons can be totally taken together and the insurance company can be directed to deposit that amount and it can be distributed among the claimants in proportion. The said decision is reported in 2007 (3) KLT 993 National Insurance Company v. Anjana Shyam). So the principle laid down by the Apex Court is to the effect that he has to satisfy the amounts due which takes in that number of passengers that is covered by the policy. Here there are four awards passed in O.P.(MV) Nos.157/05, 299/05, 393/05 and 111/07. O.P.(MV)299/05 is for Rs.1,15,700, O.P.(MV) 157/07 is for Rs.25,188/-, O.P. (MV)393/05 for Rs.52,2276/- and O.P.(MV)111/07 is for Rs.10,000/-. So the total award amount would come to Rs.2,03,164/-. Highest of the first three awards would come to Rs.1,93,164/-. So that is the liability of the insurance company in this case. The Tribunal had considered this point in paragraph 35 of the award and had only directed the said M.A.C.A. 2497 OF 2009 -:3:- amount to be deposited with a further direction to apportion it and give it among the claimants. Therefore there is no mistake committed by the Tribunal and so the appeal is devoid of merits and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-