IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 MACA.No. 2498 of 2009(A) ----------------------- OPMV.157/2005 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 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2498 OF 2009 = = = = = = = = = = = = = = = Dated this the 19th 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)157/05. The Tribunal has awarded a sum of Rs.25,200/- and directed the insurance company to deposit the same with a further direction for a proportionate disbursement. The insurance company has come up in appeal contending that overloading of the vehicle is a fundamental breach of policy condition and therefore the insurance company should be permitted to get reimbursement of the amount. A similar case came up for consideration before the appellate court in 2007 (3) KLT 993 (National Insurance Company v. Anjana Shyam). It was a case where a bus which had permit to carry only 42 persons carried 90 persons and the bus met with an accident causing death or injury to all the occupants of the bus. Then the question regarding the liability of the insurance company was considered. The Hon'ble Apex Court held that the M.A.C.A. 2498 OF 2009 -:2:- insurance company cannot be saddled with the liability of compensation for more than the permitted capacity which the vehicle can carry. Or in other words in a case of this nature where the auto rickshaw can carry only three and takes in 10, the liability of the insurance company should be restricted to only to three. The Tribunal has entered into a specific finding that the accident was not on account of the overloading of the vehicle. Since the fundamental cause of accident was not on the basis of the overloading of the vehicle then it is only a breach of policy condition and in such cases the liability has to be at least awarded with respect to three passengers. What the Tribunal has done in this case is out of the 4 cases it took out the highest of the awards of the three cases directed the insurance company to deposit the amount and thereafter decided to proportionately distribute the amount in the four cases. I find it is exactly in tune with the decision laid down by the Apex Court. So I do not find that the Tribunal has committed any mistake. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-