Kerala High Court
Jose vs M.K.Soman on 20 February, 2007
IN THE HIGH COURT OF KERALAAT 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 ( )
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AGAINST THE AWARD IN OPMV 839/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL ,
PERUMBAVOOR DATED 20-02-2007
APPELLANT)/FIRST RESPONDENT:
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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:
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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.
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M.A.C.A.Nos.1019, 1155, 1191 & 1340 OF 2011
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DATED THIS THE 12th 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 1st respondent and insured by the 2nd 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/-
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Total : 17,055/-
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OP(MV)No.839/2002
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
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Total : 91,730/-
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OP(MV)No.905/2002
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/-
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Total : 7,050/-
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M.A.C.A.Nos.1019,
1155,1191 & 1340/11 -3-
OP(MV)No.913/2002
Loss of income : 1,000/-
Transportation expenses : 500/-
Extra nourishment : 500/-
Damage to clothings : 250/-
Attendant's charges : 500/-
Treatment expenses : 640/-
Pain and suffering : 1,500/-
Loss of amenities : 1,000/-
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Total : 5,890/-
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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-cum- driver 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/1st 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 4th 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/1st 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/1st 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