United India Insurance Co. Ltd. v. Rony P. Mathew, Renny Abraham, and Saju K.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930** **MACA.No. 1625 of 2007()** **---------------------------------OPMV.1417/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** **....................** ## **APPELLANT/3RD RESPONDENT** **---------------------------------------------** **UNITED INDIA INSURANCE CO. LTD., KOTTAYAM.** **BY ADV. SRI.P.V.JYOTHI PRASAD** ## **RESPONDENT/ PETITIONER & RESPONDENTS 1 & 2** **---------------------------------------------------------------------------** **1. RONY P. MATHEW, PEMALAMUKALEL HOUSE, ETTUMANOOR.** **2. RENNY ABRAHAM, MANNIL HOUSE, KANAKAPALAM P.O, ERUMELI.** **3. SAJU K.S., KALLUMPURATHU HOUSE, KOTTAMURY BHAGOM, ATHIRAMPUZHA.** ## **BY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008, ALONG WITH MACA. NO.1650 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.1625/2007** **OARDER ON I.A. NO.1944 OF 2007 IN MACA. NO.1625 OF 2007 DISMISSED 05/11/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE** **Rs/** ## **M.N.KRISHNAN, J** ## **=====================** ## **MACA Nos.1625 & 1650 OF 2007 =====================** **Dated this the 5[th] day of November 2008** ## **JUDGMENT** These appeals are preferred against the common award passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)Nos.1417 & 1752 of 2003. Both the claimants in these cases were pillion riders on a motor bike which met with an accident resulting in sustainment of injuries. The rider did not sustain any injury and claim applications were filed against the rider, owner and the insurance company of the bike. The Tribunal awarded a sum of Rs.58,000/- in O.P.(MV)No.1752/2003 and a sum of Rs.23,750/in O.P.(MV)No.1417/2003. The Tribunal found that the claimants as pillion riders had contributed to the accident by 50%. The Tribunal also held that on account of the negligence of rider 50% of the compensation has to be paid by the insurance company. 2. The insurance company had come up in appeal in both these cases. The contention of the insurance company is that firstly being pillion riders in a motor bike the claimants are not covered, as no additional premium is paid for the pillion riders. Learned counsel had relied on the MACAs 1625 & 1650/2007 -:2:- decision of the Apex Court in United India Insurance Co.Ltd. v. Tilak Singh(2006(2) KLT 884(SC). The Tribunal found that Ext.B1 policy is a package policy with condition No.II(1)(i) which covers the risk on account of the death of or bodily injury to any person including occupants carried in the insured vehicle provided such occupants are not carried for hire or reward. The very same clause cam up for consideration before a Division Bench of this Court in New India Assurance Co.Ltd. v Hydrose and others (2008(3) KHC 522). The Division Bench held that when the conditions of the contract cover the risk of a person carried in a motor vehicle by the terms of the contract, the company is liable to pay the amount. In the light of the above the contention of the insurance company that it is not liable to pay the amount to the pillion rider cannot be sustained. 3. Now an interesting question arises regarding how the amount has to be calculated and reckoned. The Apex Court in the decision reported in National Insurance Co.Ltd. v. Anjana Shyam & Others(2007 AIR SCW 5237) was considering the case of overloading of passengers in a bus. As per the permit conditions 42 passengers were permitted to be carried whereas 90 persons travelled and many of them died and sustained injuries. The insurance company took up the contention that overloading of passengers is a breach of policy condition and therefore the insurance MACAs 1625 & 1650/2007 -:3:- company is not liable to pay the amount. The Apex Court took the view that the insurance company cannot get exonerated from the liability with respect to 42 persons who were permitted to be carried in the vehicle and derived a formula whereby the Apex Court held that take the highest of the 42 awards in that case, calculate it and then award compensation to all the passengers in proportion to their amount awarded and then direct the owner of the vehicle to pay the balance amount. Or in other words, the insurance company cannot get exonerated, but the liability will be limited to the number of passengers permitted to be carried in the vehicle. 4. Now we will go to the facts of the case. In a two wheeler only one pillion rider is permitted to be carried. Two pillion riders were carried in this case. The total amount awarded in this case comes to Rs.81,750/-. The highest of the award is Rs.58,000/-. So the liability of the insurance company has to be restricted to Rs.58,000/-. The proportionality can be worked out in the following way. The entitlement of the person, who is entitled to Rs.58,000/- would be Rs.58,000/- divided by Rs.81,750/- which would come to 0.7095/- and that of the person who is awarded Rs.23,750/would be 0.2905. When this proportionality is worked out, i.e. Rs.58,000/x 0.7095/- it would come to Rs.41,151/- and when Rs.23,750/- is multiplied by 0.2905/- it would come to Rs.16,849/- making a total of Rs.58,000/-. It MACAs 1625 & 1650/2007 -:4:- does not mean that the claimants have to be satisfied with that amount. The balance amount due under the award has to be paid by the owner with interest. Therefore the award under challenge is modified and a revised award is passed as follows: In O.P.(MV)No.1752 of 2003, the claimant is awarded a total compensation of Rs.58,000/- with 7% interest out of which the 3[rd] respondent insurance company would be liable to pay Rs.41,151/- with 7% interest and the balance amount has to be paid by respondents 1 and 2 in the claim petition jointly and severally. In O.P.(MV)No.1417 of 2003 the claimant is awarded a total compensation of Rs.23,750/- with 7% interest out of which Rs.16,849/- with 7% interest has to be paid by the insurance company and the balance amount has to be paid by respondents 1 and 2 jointly and severally. The insurance company shall pay 2/3 of the costs and respondents 1 and 2 shall pay the remaining 1/3 of the costs. The amount shall be deposited within sixty days from the date of receipt of a copy of this judgment. Appeals are disposed of as above. ## **M.N.KRISHNAN, JUDGE** ## **Cdp/-** MACAs 1625 & 1650/2007 -:5:-