IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 MACA.No. 12 of 2004() --------------------- OPMV.1279/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT: ------------------------------------------ NATIONAL INSURANCE COMPANY LTD., TRIPUNITHURA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANTS AND R-1,2,4 &6: -------------------------------------- 1. RAJEV @ RAJEEVAN (DEAF AND DUMP) REPRESENTED BY NEXT FRIEND FATHER AND NATURAL GUARDIAN UNIALAN, KURISNGAL HOUSE, S.EZHAKKARANADU POST. 2. SHIBU GEORGE, KALLAYATHIL HOUSE, EZHAKKARANADU POST. 3. AYYAPPAN. S/O. PUTHENKAVI, MANAKKAKUDI HOUSE, EZHAKKARANADU KARA, MANEEDU VILLAGE. 4. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 5. SREEDHARAN, S/O. ACHUTHAN NAIR, BIJU SADANAM, PAZHOOR KARA, PIRAVOM VILLAGE. BY ADV. SRI.K.PRABHAKARAN, SC. KSRTC FOR R4 SRI.PEEYUS A.KOTTAM FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/08/2008, ALONG WITH MACA NO.16 OF 2004 & CONN. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 12/04 2 ORDER ON IA No. 22/04 IN MACA No.12/04 DISMISSED 14.8.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 12, 13, 15 & 16 OF 2004 --------------------- Dated this the 14th day of August, 2008 JUDGMENT These appeals are preferred against the award passed by the Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) Nos.1279/99, 747/99, 44/99 & 714/99. The amount awarded in these cases are Rs.22,600/- in OP(MV) No.1279/99, Rs.18,400/- in OP(MV) No.747/99, Rs.20,600/- in OP(MV) No.44/99 & Rs.22,200/- in OP(MV) No.714/99. The Tribunal found that the accident took place on account of the negligent driving of the jeep driver and therefore held that the owner, driver and the Insurance Company of the jeep is liable for the amount. The KSRTC bus was exonerated from the liability. 2. A discussion in the award would clearly indicate that it was the jeep that had gone and hit on the KSRTC bus. Therefore, the finding of negligence does not call for any interference. 3. The main question of law involved and argued is with respect to the liability of the Insurance Company. Admittedly, it was a passenger jeep vehicle where the policy has been issued for covering five passengers. There were twelve passengers in the jeep. Therefore, the Insurance Company contended before the Tribunal that as the vehicle had carried MACA No. 12/04 and Conn. Cases 2 more passengers than what is contemplated, it amounts to breach of policy conditions and therefore it has to be totally exonerated from the liability. 4. The said argument in the light of the then prevailing decisions was not accepted by the Tribunal and the Tribunal directed the Insurance Company to pay the amount to all passengers. Learned counsel now contends before me that the position is now squarely covered by the decision of the Apex court reported in National Insurance Co. Ltd. v. Anjana Shyam and Others [2007 AIR SCW 5237]. It was a case where the vehicle which could carry 52 passengers carried 90 passengers and met with an accident. The question that arose was whether all the 90 passengers are to be compensated by the Insurance Company. The Apex court held that when a specific number of persons to be covered by the policy are incorporated in the Insurance contract, it may not be correct to direct the Insurance Company to pay more amount to the other persons involved in the accident. The Apex court also found that it may not be possible for anybody to find out who are the first 52 persons who had boarded in the vehicle. So the Supreme Court had given a method of doing the work to calculate the compensation. Firstly it has to be held that in the light of the above decision in which it is held that “the extent of liability of the Insurance Company in respect of the passengers of a stage carriage insured in terms of Section 147 (1)(b)(ii) of the Act is limited only MACA No. 12/04 and Conn. Cases 3 to the number of passengers authorised to be carried in the vehicle.” 5. Then the Apex court in para 16 of the said judgment held how the apportionment has to be done. “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 compensation awarded to 42 passengers 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 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 amount 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.” 6. So the direction in this decision is to take out the highest of the five awards in this case add them up and also find out the total amount awarded in all the cases together then work out a proportion and apportion the amount accordingly and thereafter direct the claimants to recover the balance amount awarded from the owner and driver jointly and severally. MACA No. 12/04 and Conn. Cases 4 7. In this batch of cases, there are 12 cases. OP 39/99 20,800/- OP 40/99 20,300/- OP 41/99 18,400/- OP 43/99 8,500/- OP 44/99 20,600/- OP 45/99 27,500/- OP 97/99 1,44,300/- OP 711/99 14,300/- OP 714/99 22,200/- OP 747/99 18,400/- OP 1279/99 22,600/- OP 1276/99 4,650/- ---------------- TOTAL 3,42,550/- = = = = = = = 8. Now the next duty is to find out the highest of the awards. Highest of the five awards are as follows: OP 97/99 1,44,300/- OP 45/99 27,500/- OP 1279/99 22,600/- OP 714/99 22,200/- OP 39/99 20,800/- ------------- TOTAL 2,37,400/- = = = = = MACA No. 12/04 and Conn. Cases 5 9. Thus the total of the highest five awards would come to Rs. 2,37,400/-. In other words, the total liability of the Insurance Company has to be Rs.2,37,400/-. The total amount awarded in all these 12 cases would come to Rs. 3,42,550/-. So when the proportion is worked out, the proportion will be as follows: OP 39/99 20,800/- .060 14,244/- OP 40/99 20,300/- .059 14,006/- OP 41/99 18,400/- .053 12,439/- OP 43/99 8,500/- .024 5,697/- OP 44/99 20,600/- .060 14,224/- OP 45/99 27,500/- .080 18,992/- OP 97/99 1,44,300/- 0.421 99,945/- OP 711/99 14,300/- 0.041 9,733/- OP 714/99 22,200/- 0.064 15,193/- OP 747/99 18,400/- 0.053 12,582/- OP 1279/99 22,600/- 0.065 15,431/- OP 1276/99 4,650/- 0.013 3,086/- ------------- ------------- TOTAL 3,42,550/- 2,35,572/- = = = = == = = = = = 10. This will almost cover Rs.2,37,400/- which is liable to be paid by the Insurance Company. Therefore, in these four cases, the liability of the Insurance Company are as follows: OP 44/99 14,224/- OP 1279/99 15,431/- OP 714/99 15,193/- OP 747/99 12,582/- MACA No. 12/04 and Conn. Cases 6 Therefore the appeals are disposed by directing the Insurance Company to pay the amount mentioned in para 10 with the interest awarded and for the balance amount awarded by the Tribunal, the claimants have to proceed against the owner and driver of the vehicle, namely the jeep. M.N.KRISHNAN, JUDGE vps MACA No. 12/04 and Conn. Cases 7