IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 MACA.No. 2492 of 2009() ----------------------- OP (MV). 299/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 2ND RESPONDENT ----------------- THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM, REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): 1st 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 DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A.No. 2492 of 2009 ------------------------------- Dated this the 19th October, 2009 J U D G M E N T Raman, J. This appeal is filed by the Insurance Company, against the order in O.P.(M.V.) No.299/05, on the file of the Motor Accidents Claims Tribunal, Thodupuzha. 2. The Oriental Insurance Company, the Insurer, is the appellant herein. The appellant was the second respondent in the Original Petition. The claimant who was a passenger in an auto rickshaw sustained injuries, when the vehicle capsized on 12.12.2004. There were altogether 10 passengers in the vehicle, at the time of the accident. First respondent in the claim petition, the respondent herein, was the owner. He remained ex parte. The Insurance Company took up the stand that the vehicle was insured as a passenger carrying commercial vehicle and as per the permit and policy issued, the vehicle could carry only three MACA No.2492 OF 2009 2 passengers, and contrary to the permissible limit, the auto rickshaw carried 10 passengers. Therefore, they contended that the accident occurred due to over-loading of the vehicle. There were other claim preferred pertaining to the same accident. All the four claims including the claim, O.P.(M.V.) No.299/2005, against which the present appeal is preferred, were tried together and disposed of by a common award passed by the Motor Accidents Claims Tribunal, Thodupuzha. 3. Turning to the contention raised by the appellant as aforesaid, the Tribunal held that the accident was as a result of the rash and negligent driving by the driver of the auto rickshaw who was in excessive speed. Therefore, the responsibility of the accident was fixed on the driver of the vehicle. The Tribunal then referred to Ext.B1 policy produced in the case as also Ext.B2 permit particulars. As per Ext.B2, the maximum passenger capacity of the vehicle is four in all and the vehicle was permitted to run through all fit roads in Idukki District. The seating capacity as per Ext.B1 policy is only three. MACA No.2492 OF 2009 3 In the circumstances, the appellant, who was the second respondent, was exonerated from the liability to indemnify the insured for the compensation payable to injured passengers beyond three. Since there were four claim petitions, the appellant was directed to deposit the award amount in O.P.(M.V.) Nos. 299/05, 393/05 and 157/05, with interest from the date of the respective petitions till realisation within one month. The amount after deposit was directed to be disbursed in proportion to the amount payable to the petitioners in the four claim petitions, so that the petitioners are held entitled to get the balance award amount due to each one of them from the owner of the auto rickshaw, the first respondent. 4. What the Tribunal thus did in the present case is to direct the Insurance Company to deposit the maximum amount covered by the three awards among the four. This is only for the purpose of quantification and deposit to be made by the Insurance Company. But as regards the actual entitlement, the petitioners in each of the claim was entitled to get MACA No.2492 OF 2009 4 proportionate amount as awarded. Therefore, the contention of the Insurance Company that because of the over-loading of the vehicle carrying more number of passengers than the permitted, was upheld and the Insurance Company was directed to pay only the amount covered for three passengers. 5. It is contended by the learned counsel appearing for the appellant that when once the policy conditions are violated, there arise no liability to pay the amount, and, therefore, the award, in so far as it directed the Insurance Company to pay the amount covered by the three awards, is not warranted. Placing reliance on the decision of the Apex Court in National Insurance Company v. Challa Bharathamma (2004 (3) KLT 454 (SC)), it was contended that in above case, the vehicle was run without permit and Insurance Company was exonerated. According to the learned counsel, the same principle should be extended to the present case also. But we find that a similar case where the passengers carried in the vehicle exceeded the permitted number as per the policy conditions directly came MACA No.2492 OF 2009 5 up for consideration before the Apex Court in National Insurance Company Ltd. v. Anjana Shyam (2007 (3) KLT 993 (SC), wherein it was held that the practical and proper course, in such circumstances, when the passengers carried in the vehicle exceeded the permit capacity, is to direct the Insurance Company to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation to the number of passengers covered by the Insurance policy. In the light of the above binding decision of the Apex Court, we find no illegality committed by the Tribunal in passing the impugned award. We find no merit in this appeal. Accordingly, this appeal is dismissed. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.