High Court of KeralaDivision BenchAppeals disposed of; insurer to return specifie...

Jose v. M.K. Soman and National Insurance Co. Ltd.

Case / Petition Number:MACA No. 1191 of 2011

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. R. Ramachandra Menon
  • Anil K. Narendran
Judgment Date
2016-01-12
Court Decision / Holding
Appeals disposed of as stated. The Insurance Company is directed to return Rs. 22,925 in OP(MV) 807/02 and Rs. 9,476 in OP(MV) 905/02 to the appellant before the Tribunal within one month from receipt of this judgment. The liability for OP(MV) 839/02 remains to be addressed as per the pooling principle and max-capacity. The order reflects application of the National Insurance Co. Ltd. v. Anjana Shyam principle, capping insurer liability to the policy-based maximum, and distributing liability across the four petitions accordingly.
Final Disposition
Appeals disposed of; insurer to return specified sums; remaining liability to be allocated under pooling as per the seating capacity principle.

Parties to the Case

Appellants / Petitioners

  • Jose

Respondents

  • M.K. Soman
  • National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri G. Rajagopal

Counsels for Respondents

  • • Sri Rajan P. Kaliyath

Case Synopsis & Summary

This is a Kerala High Court Motor Accidents Claims Appeal arising from four connected petitions under OP(MV) (Motor Vehicle) 2002 seeking compensation for injuries suffered by four passengers in auto-rickshaw KL-7L-1296 on 2.12.2001. The auto-rickshaw's permit allowed three passengers; four were carried at the time of the accident, allegedly due to owner-driver negligence, triggering liability questions against the insurer. The Tribunal awarded varying sums under OP(MV) Nos. 807/2002, 839/2002, 905/2002, and 913/2002. The insurer was directed to satisfy the awards but with a right of recovery. The core issue in the appeals is whether the Insurance Company can absolve itself entirely or only to the extent of liability proportionate to seating capacity, and how liability should be apportioned when more claimants exist than seats. The apex court principle cited (National Insurance Co. Ltd. v. Anjana Shyam) holds that insurer cannot be absolved, but that liability is limited to the maximum payable under the policy's seating capacity, necessitating pooling of liability across cases to identify the maximum-capacity awards and distribute them, with the balance potentially recovered from the driver/owner. The High Court applies this to allocate liability and orders the insurer to refund portions already paid, with specific sums to be returned within a month.—Apex Court precedent and the policy’s seating capacity govern fixed liability and inter-case pooling in determining liability allocation.

Legal Doctrines & Maxims

  • Liability of insurer restricted to maximum liability under the policy, reckoning the vehicle’s seating capacity.
  • Pooling of liability among multiple claim petitions to distribute liability where claimants exceed seating capacity.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the liability of the Insurance Company cannot be absolved merely because there were more claimants than the seating capacity. Relying on the Supreme Court’s decision in National Insurance Co. Ltd. v. Anjana Shyam, the insurer’s liability should be fixed up to the maximum payable under the policy (based on seating capacity) and this amount should be pooled among those four petitions. The appellant argues that the tribunal’s awards exceeding the policy’s capacity should be apportioned, and the insurer should not be allowed to sidestep responsibility by recouping payments already made, except to the extent expressly permitted by law. The appellant seeks that sums already paid be retrievable from the insurer where appropriate and that the liability be distributed per the capacity-based ceiling to satisfy the maximum possible awards.

Contentions of Respondents

The Insurance Company argues that once it has discharged the amounts in the cases with higher awards, its liability is effectively discharged for those, and that liability should be limited to the lowest award among the cases. It relies on the same apex court principle that liability is capped by the policy’s seating capacity but contends that the settlement should reflect the insurer’s regressed exposure and that amounts already paid should be regarded as satisfied in the higher cases. The insurer prays for orderly adjustment and release from further liability beyond the higher-capacity awards, subject to the court’s determination of the exact apportioned liability under the pooling principle.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
National Insurance Co. Ltd. v. Anjana Shyam2007 (3) KLT 993PositiveThe judgment explicitly relies on this apex court decision to hold that insurer’s liability is restricted to the maximum payable under the policy’s seating capacity and must be determined by pooling across cases, which the High Court applies to allocate liability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937 MACA.No. 1191 of 2011 ( ) -------------------------- AGAINST THE AWARD IN OPMV 839/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL , PERUMBAVOOR DATED 20-02-2007 APPELLANT)/FIRST RESPONDENT: ------------------------------------------------ JOSE,AGED 59 YEARS,S/O JOSEPH, PUNELY HOUSE, PAYYAL KARA, ASAMANNOOR VILLAGE NEDUNGAPRA.PO, PERUMBAVOOR. BY ADV. SRI.G.RAJAGOPAL RESPONDENTS/CLAIMANT AND THE SECOND RESPONDENT: -------------------------------------------------------------------------------------- 1. M.K.SOMAN,AGED ABOUT 46 YEARS, S/O.KOCHUKUTTAN, MADASSERYKUDY HOUSE, ODAKKALI KARA ASAMANNOOR VILLAGE, PIN-683541. 2. NATIONAL INSURANCE CO.LTD.,P.B.NO.24, A.M.ROAD, MULLAPPILLY BUILDING, PERUMBAVOOR PIN-683542. R2 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12-01-2016, ALONG WITH MACA. 1019/2011, MACA. 1155/2011, MACA. 1340/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.Nos.1019, 1155, 1191 & 1340 OF 2011 -------------------------------------------------DATED THIS THE 12[th] DAY OF JANUARY, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . These appeals arise out of a common cause of action pertaining to an accident involving autorickshaw bearing registration No.KL-7L-1296 owned and driven by the 1[st] respondent and insured by the 2[nd] respondent. Four persons were travelling in the said autorickshaw on 2.12.2001. When it reached the place of occurrence, allegedly because of the negligence on the part of the owner-cum-driver of the autorickshaw, the vehicle overturned and the passengers were thrown out from it, causing serious injuries, which led to four different claim petitions before the Tribunal. 2. The owner-cum-driver of the autorickshaw did not choose to contest the matter and was set ex parte. The matter was contested by the Insurance Company, mainly raising a contention that there was violation of the permit condition, in so far as more number of persons were carried in the autorickshaw than the permitted seating capacity, of 'three'. After evaluating the facts and circumstances, different amounts were awarded by the Tribunal M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -2- under different heads. The total amounts of compensation awarded in the different claim petitions are as given below: ## **OP(MV)No.807/2002** Loss of income : ₹4,000/Transportation expenses : ₹ 750/Extra nourishment : ₹ 750/Damage to clothings : ₹ 250/Attendant's charges : ₹1,500/Treatment expenses : ₹4,805/Pain and suffering : ₹3,000/Loss of amenities : ₹2,000/-------Total : ₹17,055/====== Loss of income : ₹ 8,000/Transportation expenses : ₹ 1,500/Extra nourishment : ₹ 1,000/Damage to clothings : ₹ 250/Attendant's charges : ₹ 5,000/Treatment expenses : ₹40,980/Pain and suffering : ₹15,000/Loss of amenities : ₹ 10,000/Discomfort and disability : ₹ 10,000 -------Total : ₹91,730/====== Loss of income : 2,000/-₹ Transportation expenses : ₹ 500/Extra nourishment : ₹ 500/Damage to clothings : ₹ 250/Attendant's charges : ₹ 300/Treatment expenses : ₹ 500/Pain and suffering : ₹2,000/Loss of amenities : ₹1,000/-------Total : ₹7,050/====== ## **OP(MV)No.839/2002** ## **OP(MV)No.905/2002** M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -3- ## **OP(MV)No.913/2002** |Loss of income<br>|:|<br>₹|1,000/-| |---|---|---|---| |Transportation expenses|:||500/-<br>₹| |Extra nourishment|:||500/-<br>₹| |Damage to clothings|:||250/-<br>₹| |Attendant's charges|:||500/-<br>₹| |Treatment expenses|:||640/-<br>₹| |Pain and suffering|:||1,500/-<br>₹| |Loss of amenities|:||1,000/-<br>₹| ||||--------| |Total|:||5,890/-<br>₹| |||======|| 3. The Tribunal observed that by virtue of the contents of the policy, (copy of which was produced as Ext.B1), the maximum number of passengers who could be permitted to be carried in the autorickshaw was only 'three', whereas 'four' persons were being carried at the time of accident, which was a clear violation of the permit granted to the autorickshaw. It was accordingly that the liability was directed to be satisfied by the Insurance Company, however granting right of recovery reserved in favour of the Insurance Company. This made the owner-cumdriver to feel aggrieved and hence the present appeals with petitions to condone delay in filing the same( which have been condoned by us vide separate order passed today). 4. Heard the learned counsel for the parties on both the M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -4- sides. The crucial question to be considered is whether the liability can be sought to be absolved by the Insurance Company or could they claim the right of recovery in toto, merely for the reason that more number of passengers were carried in the vehicle at the relevant point of time, than the permitted seating capacity. This issue had come up for consideration before the Apex Court and as per the decision reported in **National Insurance Co. Ltd.** v. **Anjana Shyam (2007 (3) KLT 993)** , the Apex Court held that the Insurance Company cannot seek to be absolved under such circumstances. However, it was made clear that the liability of the Insurance Company would stand restricted/confined to the maximum liability payable, reckoning the total seating capacity of the vehicle, for which the policy was issued. The Apex Court also considered as to how the issue has to be approached and the liability has to be fixed, when more number of claimants are there, than the seating capacity. It was accordingly held that, after awarding compensation in the different claim petitions, the cases awarding the maximum compensation in the number of cases with reference to the M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -5- maximum seating capacity have to be identified and the said extent of liability is to be satisfied by the Insurance Company. This amount will have to be pooled/shared among the claimants in the proportion fixed by the Tribunal, based on the compensation awarded and the balance amount could be sought to be procured from the other respondents concerned, who are the offenders being the driver or the owner of the vehicle concerned. Applying the dictum in the above said case to the present appeals, it is to be noted that the seating capacity of the vehicle is 'three' and the policy definitely has to cover the maximum liability in respect of three cases where the maximum amounts have been awarded. Among the 'four' cases, substantial amounts have been awarded in three cases and the lowest amount awarded is in OP(MV) 913/2002, which is to the tune of ₹5,890/- (rounded off to 5900) plus interest @ 7% from the date of petition. 5. The learned counsel for the Insurance Company submits that the Insurance Company has deposited a sum of ₹7,931/- in that case and since the Insurance Company has M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -6- satisfied the entire amount in respect of the other three cases where amounts are more, it has to be held that the liability of the Insurance Company will stand discharged by virtue of such remittance in the other three cases and the amounts remitted have to be pooled/shared among the claimants concerned. Applying the dictum to the given facts and circumstances of the present case, the Insurance Company has already satisfied a sum of 22,925/- by way of principal amount and interest in respect₹ of the sum of 17,055/- in OP(MV) No.807/2002. Similarly, in₹ respect of O.P.(MV)No. 839/02 a total sum of 1,₹ 23,300/- has been paid by the Insurance Company as against the award amount of 91,730/- plus interest. In respect of OP(MV) No.₹ 905/02, in order to satisfy the award amount, 7,050/- plus₹ interest, a sum of 9,476/- has been satisfied. Similarly, in₹ respect of the last case, i.e., OP(MV)No.913/2002, an amount of ₹7,931/- has been satisfied, as against the liability of 5,900/-₹ plus interest. The learned counsel for the appellant/1[st] respondent submits that, pursuant to the steps taken by the Insurance Company, the liability in OP(MV) No.807/02 (subject M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -7- matter of M.A.C.A.No.1019/11), OP(MV) No.905/02 (subject matter of M.A.C.A.No.1340/11) and OP (MV)No.913/02(subject matter of M.A.C.A.No.1155/11) have already been paid back to the Insurance Company and what remains is only in respect of OP(MV)No.839/02(subject matter of M.A.C.A.No.1191/11). By virtue of the question of law made clear by the Apex Court as per decision cited supra, the liability of the Insurance Company should stand confined to the higher three awards passed by the Tribunal in OP(MV)Nos.807/02, 839/02 and 905/02 and the Insurance Company can be absolved only in respect of the 4[th] one, i.e., the lowest one, in OP(MV) No.913/02. Since, it is stated that, the amount paid by the Insurance Company has already been recovered from the appellant/1[st] respondent in respect of OP(MV)No.807/2002 and 905/2002, (the highest one in OP(MV) No.839/2002 still remains to be paid back to the Insurance Company), there will be a direction to the respondent Insurance Company to return the sum of 22,925/- in respect of OP(MV)₹ No.807/02 and 9,476/- in respect of OP(MV)No.905/02 to the₹ appellant/1[st] respondent before the Tribunal. The amount as M.A.C.A.Nos.1019, 1155,1191 & 1340/11 -8- above shall be returned at the earliest, at any rate within one month from the date of receipt of a copy of this judgment. Appeals stand disposed of as above. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge