FAO No.5187 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5187 of 2006 Date of Decision. 24.09.2010 National Insurance Company Limited, Regional Office-II, SCO Nos.337-340, Sector 35-B, Chandigarh through its authorized signatory Sh. Gopal Krishan, Administrative Officer ......Appellant Versus Surender and others .....Respondents Present: Mr. Navin Kapoor, Advocate for the appellant. None for respondent Nos.1 to 5. Mr. Jagjeet Beniwal, Advocate for respondent Nos.6 and 7. None for respondent Nos.8 and 9. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The insurance company is on appeal challenging the liability on the ground of negligence as well as the violation of terms of the policy. The case involved a claim by representatives of the deceased passenger in the insured's jeep. The vehicle had been insured as a commercial vehicle. The contention by the claimants was that the collision was caused by the negligent driving of a truck bearing No.OR-02E/7107 but in the course of trial, the claimants sought to contend that the accident was result of the jeep itself. The contention of the insurer, therefore, was that there was no negligence on the part of the jeep driver and therefore, it could not FAO No.5187 of 2006 -2- have been made liable. 2. It is also contended by the insurer that there had been a violation of terms of the policy by the owner allowing more than 20 passengers to travel in the vehicle when the policy of insurance stipulated that the maximum number of passengers that were allowed to be carried were 6. 3. It must be noticed that the claim is at the instance of a passenger against the owner and driver of the jeep as well as the owner and driver of the truck. As far as the claimants were concerned, it was a case of composite negligence. If only the claim had been emanated from the driver of the jeep, the issue of contributory negligence would be relevant. It it was case of contributory negligence, liability would require to be apportioned specifically. In case of composite negligence and a claim is made at the instance of a person, who is not himself the tort feasor then it shall be perfectly legitimate for such a person to file a case only against one of the persons, who was responsible for the accident. I will not make the issue of pleading as a major obstacle, for, in cases of collision of vehicles, the actual negligence will be normally established only at the time of trial and Tribunal shall ensure that all the parties are present against whom allegations had been made and the parties knew what is attributed to them when they go to trial and what they have to explain. If in the course of evidence so far the claimants had contended that that the driver of the jeep itself was responsible for the accident and the driver and owner were also parties then no prejudice could be said to have been caused in such FAO No.5187 of 2006 -3- a version. The Tribunal in this case has apportioned the liability and held the owner of the truck to be liable for 50% and cast the liability of 50% for the accident to the owner/insurer of the jeep. I cannot find fault with such a finding and I find no error in the order of the Tribunal to reverse such a finding. 4. It is contended that the vehicle was overloaded and therefore, there have been violation of terms of policy and the insurer must be provided at least a right of recovery against the insured. This contention also, in my view, is not correct for the mere overloading of the jeep itself cannot avail to an insurer to plead that there had been a violation of terms of the policy. What is necessary to be seen is whether the violation was fundamental in the sense that such overloading was the cause for the accident. This Court has held in Gurpal Singh Vs. Jagan Nath 1999(2) 122 PLR 131 that mere fact that the truck was overloaded or was carrying passengers in excessive number would not itself be taken a negligent act making the vehicle as prone to accident. It could be taken as a factor for a contributory negligence if there was such evidence. There had been no evidence brought on record to show that the overloading itself was the cause for such accident. Therefore, the liability cast on the insurer on both the grounds ought to be sustained and the appeal by the insurer is dismissed. (K. KANNAN) JUDGE September 24, 2010 Pankaj*