IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 MACA.No. 312 of 2008() -------------------------------- OPMV.2561/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/1ST RESPONDENT --------------------------------------------- GEORGE JAMES @ APPACHAN MUNDATHANATHU HOUSE, PANAMA KAVALABHAGAM KANAKARI P.O.,KOTTAYAM DISTRICT. BY ADV. SRI.SANTHAN V.NAIR RESPONDENTS/PETITIONER & 2ND RESPONDENT ------------------------------------------------------------------------ 1. LAKSHMI P.R.(MINOR), REPRESENTED BY HER FATHER AS HER NEXT FRIEND AND GUARDIAN, RADHAKRISHNAN, PADMAVILASAM HOUSE, PARAPURAM BHAGAM, KANAKARI. P.O., ETTUMANOOR VILLAGE. 2. THE NEW INDIA ASSURANCE CO.LTD ETTUMANOOR. ADV. SRI.C.C.PADMAKUMAR FOR R1 ADV. SRI.LAL GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== MACA No.312 OF 2008 ===================== Dated this the 24th day of October 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.2561 of 2004. The claimant, a minor girl sustained injuries in a road accident and she has been awarded a compensation of Rs.35,300/- with a further direction to the insurance company to make the payment and get it reimbursed from the present appellant who is the owner-cum-driver of the auto rickshaw in the case. It is against that decision, the owner-cum-driver has come up in appeal challenging the finding of the Tribunal. An auto rickshaw is only intended to carry 3 passengers. The question whether the liability of the insurance company could be totally exonerated in the case of only overloading of passengers was considered by the Apex Court in the decision reported in National Insurance Co.Ltd. v. Anjana Shyam & Others(2007 AIR SCW 5237). It was a case where in a vehicle which had a permit to carry 42 passengers, 90 were carried out of which so many persons died. The insurance company claimed exoneration on the ground of overloading. The MACA 312/2008 -:2:- Apex Court held that there cannot be a total exoneration but held that the highest of the 42 awards has to be taken into consideration and it has to be apportioned among all the insured. If that alone is the fact in this case also the appellant would have been in a better position. But it is not so for the following reasons. The police has filed a charge sheet stating that the injured in the case was travelling in the seat of the driver. When a person is travelling in the seat of a driver in an auto rickshaw whether it amounted to breach of conditions had been considered by the Apex Court in the decision reported in United India Insurance Co.Ltd. v. Suresh K.K. and another (2008 AIR SCW 4739). In paragraph 13 the Apex Court held that “in any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved”. So when there is only one seat intended to be provided for the driver alone and any other person is permitted to share that seat with the driver, the Apex Court has held that there is breach of policy conditions. For this, a reference to the award passed by the Tribunal is also of some help. It is very clearly stated in the charge sheet that CW1 the claimant herein was seated on the left side of himself in the driver's seat and there MACA 312/2008 -:3:- were other 8 travellers in the auto and consequently the petitioner was thrown out of the vehicle resulting in injuries. Again, this fact has been adverted to by the Tribunal in paragraph 17 of the award also. So, in the light of the decision of the Apex Court that an auto driver's seat is not liable to be shared and it amounts to breach of policy conditions I cannot find fault with the Tribunal in arriving at such a decision. Learned counsel for the appellant very strongly contends for a remand in this case. I do not propose to grant an order of remand. The materials available are sufficient to indicate that the injured was travelling by sharing the seat of the driver. Any contra evidence cannot be sufficient to dispel what is stated immediately after the accident. So I am disinclined to grant any order of remand in this context. Hence the appeal is dismissed. But I grant 3 months' time to the appellant to pay the amount and any proceeding for realisation shall be kept in abeyance till the expiry of 3 months. M.N.KRISHNAN, JUDGE Cdp/-