M.A.C.A.No. 1752 of 2007 (G) - Joy Joseph v. Marykutty Mathew @ Mary Thomas, M.K. Abraham, The Oriental Insurance Co. Ltd. (OPMV.723/2004, Motor Accident Claims Tribunal, Muvattupuzha)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 M.A.C.A.No. 1752 of 2007(G) ----------------------OPMV.723/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... ## APPELLANT/1ST RESPONDENT ----------------------------------------- JOY JOSEPH, MAKKOLIL HOUSE, VAZHAKULAM, MUVATTUPUZHA. BY ADV. SRI.JOMY GEORGE RESPONDENTS/PETITIONER AND RESPONDENTS 2 AND 3 ----------------------------------------------------------------------------------- 1. MARYKUTTY MATHEW @ MARY THOMAS, W/O THOMAS, AGED 37, RESIDING AT MALEKUDIYIL HOUSE, ENANALLOOR MUVATTUPUZHA. 2. M.K.ABRAHAM, MALEKUDIYIL HOUSE, ENANALLOOR, MUVATTUPUZHA. 3. THE ORIENTAL INSURANCE CO. LTD., JYOTHI SUPER BAZAR, THODUPUZHA. BY ADVS. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008 ALONG WITH M.A.C.A.NOS. 1754,1755,1761, 1763 OF 2007 AND W.P.(C) 33455 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.N. KRISHNAN, J** ## **-------------------------------------------** **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **-----------------------------------------Dated this the 19[th] day of August, 2008** ## **J U D G M E N T** These appeals are preferred against the award passed by the Motor Accident Claims Tribunal, Muvattupuzha in O.P(MV) Nos. 722/07, 723/07, 725/07, 726/07 & 727/07 and W.P.(C) No. 33455/07 as preferred against the award of the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(MV) 724/07. The owner of the vehicle involved in the accident is the appellant in all the appeals and the writ petitioner in the Writ Petition. The Tribunal awarded a sum of Rs. 16,605/- in O.P(MV)No. 722/07, Rs. 37,625/in O.P.(MV) No. 723/07, Rs. 7,340/- in O.P.(MV) No. 724/07, Rs. 29,610/- in O.P.(MV) No. 725/07, Rs. 9,785/- in O.P.(MV) No. 726/07 and Rs. 8,920/- in O.P.(MV) 727/07. Totalling a sum of Rs. 1,09,885/-. 2. The Tribunal found that there is breach of policy conditions under two captions namely overloading of the vehicle and secondly the driver did not have a valid driving licence at the time of the ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **-2-** accident. So far as the overloading of the vehicle is concerned, it is to be submitted that the jeep was insured to carry five passengers plus driver whereas six passengers and a driver was travelling in the vehicle and therefore it was held that there is breach of policy conditions. This position has been settled by the Apex Court in the decision reported in _**National Insurance Co. Ltd. v. Anjana Shyam and Others [2007 AIR SCW 5237]**_ the Supreme Court 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 to the number of passengers authorised to be carried in the vehicle”.In other words it is not a total exoneration of liability of the Insurance Company but the liability of the Insurance Company is limited to the number of passengers permitted to be carried under the permit. When there is overloading of passengers how it has to be calculated has also been considered by the Apex Court in para 16 of the said judgment. It was a case where a vehicle which had a permit to carry 42 passengers carried 90 passengers, the Apex Court held: “In the case on hand, 42 passengers were the **-3-** ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** 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 in to 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 the 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” ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **==> picture [16 x 7] intentionally omitted <==** 3. So the principles applied in the present cases are concerned is to take out the highest of the five awards passed and then workout the proportion of the total amount awarded in all the six cases proportionally and distribute that amount, which the Insurance Company is liable to pay and then direct the claimants to receive the balance amount from the owner of the vehicle. When it is so, the total awarded amount in all the six cases together would come to Rs. 1,09,885/-. The highest of the five awards are O.P 723/2007, O.P. 725/2007, O.P. 722/2007, O.P.726/2007 and O.P 727/2007. It would come to a total sum of Rs. 1,02,545/-. Now the proportion of six awards of the total amount of Rs. 1,09,885/has to be calculated. |O.P|722/07|16,605.00|0.151|15,524.00| |---|---|---|---|---| |O.P|723/07|37,625.00|0.342|35,110.00| |O.P|724/07|7,340.00|0.066|6,807.00| |O.P|725/07|29,610.00|0.269|27,624.00| |O.P|726/07|9,785.00|0.089|9,166.00| |O.P|727/07|8,920.00|0.081|8,340.00| |||-------------||--------------| |TOTAL||1,09,885.00||1,02,571.00| |||========||========| ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **-5-** 4. So this will be the proportionate amount that the Insurance Company is liable to pay with interest and the balance amount has to be realised from the owner of the vehicle with interest. So the first point of overloading is answered as above. 5. The next question argued is regarding the driving licence. The learned counsel for the appellant persuasively submit that there was valid driving licence or that the driving licence was renewed within the statutory period under the Motor Vehicles Act. If it is renewed within the statutory period then necessarily the Insurance Company would be bound to pay the amount. Further it is also to be considered whether there has been a breach of policy conditions as enumerated and contemplated in _**National Insurance Co. Ltd. v. Swaran Singh in 2004(1) KLT 781 (SC)**_ in paragraph 102 (iii) and (vi).The Tribunal has only considered the question that it was the duty of the owner to have enquired about the driving licence and when he had not done it, it amounts to consciously giving the vehicle to a person who was not holding a valid licence. But at the same time it did not consider what is contemplated in para 102 (iii) and (vi). So I think an opportunity can be given to the owner to ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **-6-** establish whether there can be a liability on the Insurance Company. At any rate, if it is found that there was no valid driving licence and there was breach of policy conditions as enumerated in the decision cited above, the owner will be bound to reimburse the entire amount awarded to the Insurance Company. For that purpose, the matter is remitted back. 6. In the result, the appeals and the writ petition are disposed of as follows: 1. The amount which is liable to be paid by the Insurance Company on account of the overloading of passenger in the jeep is as enumerated in the previous paragraphs of the judgment. 2. The quantum is confirmed. 3. The owner is given an opportunity to produce documentary as well as oral evidence in support of their respective contention that there was a valid driving licence and there was no breach of policy conditions. The Insurance Company also is permitted to adduce evidence in support of its contentions regarding the breach. For the purpose mentioned in item No. 3 alone, the matter is remitted back to the Tribunal for consideration and disposal. At any ## **M.A.C.A.Nos. 1752, 1754, 1755, 1761, 1763 OF 2007 & W.P.(C) No. 33455 OF 2007** **==> picture [16 x 7] intentionally omitted <==** rate the junction of the claimant may not be insisted for the disposal of the cases. The question of breach of policy conditions can be decided afresh taking into consideration the latest decision on the point till the date of disposal of the case. Parties are directed to appear before the Tribunal on 6.10.2008. **M.N. KRISHNAN, JUDGE.** vkm