Kerala High Court
Nadeer M.T vs Rageev R on 23 November, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937
MACA.No.1904 of 2006 ( )
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(AGAINST THE AWARD DATED 23-11-2005
IN OPMV 205/1999 OF MACT VADAKARA)
APPELLANT(S)/APPELLANT/7TH RESPONDENT IN OP(MV)::
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NADEER M.T., S/O.LATE M.T.KUNHABDULLA,
AGED 18 YEARS, 'M.T.HOUSE', MUTTUNGAL WEST POST,
VADAKARA, KOZHIKODE DT.
(ONE OF THE L.RS.OF DECEASED, M.T.KUNHABDULLA-R1)
*(APPELLANT IS YOUNGER THAN THE 8TH RESPONDENT IN THE
PETITION, O.P.(MV) AND HIS AGE WRONGLY SHOWN AS ALSO HIS
INITIAL 'P.K' AGAINST CORRECT INITIAL 'M.T.')
BY ADVS.SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENT(S)/PETITIONER & RESPONDENTS 2 TO 6 & 8 IN O:
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1. RAGEEV R., S/O.KRISHNAN,
AGED 35 YEARS, RAMATH HOUSE,
KURIYADI P.O., CHORODE, VADAKARA-6,
KOZHIKODE DISTRICT.
2. SURESH BABU, S/O. KUNHIRAMAN,
THYKKUTTATHIL HOUSE, VADAKARA AMSOM,
PURAMKARA DESOM, PIIN-673 103,
KOZHIKODE DISTRICT.
(DRIVER OF JEEP NO.KBF.7473,
DL.NO.4633/92, BADGE NO.609/94D).
3. THE NEW INDIA ASSURANCE COMPANY LTD.,
19/253, AL-MUBARAK BUILDING, EDODI,
VADAKARA-673 101, (INSURER OF JEEP KBF.7473,
POLICY NO.3176130153995, CERTIFICATE NO.532/65401).
4. NASEEMA P.K.,
W/O. LATE M.T.KUNHABDULLA-(R1), AGED 42 YEARS,
M.T.HOUSE, MUTTUNGAL WEST P.O., VADAKARA,
KOZHIKODE DISTRICT.
5. RAFFEQUE P.K.,
S/O. LATE M.T.KUNHABDULLA-(R1), AGED 27 YEARS,
M.T. HOUSE, MUTTUNGAL WEST P.O., VADAKARA,
KOZHIKODE DISTRICT.
:2:
MACA.No.1904 of 2006
6. AJINAS P.K.,
D/O.LATE M.T.KUNHABDULLA-(R1), AGED 25 YEARS,
M.T. HOUSE, MUTTUNGAL WEST POST, VADAKARA,
KOZHIKODE DISTRICT.
7. KABEER P.K.,
S/O. LATE KUKNHABDULLA-(R1), AGED 20 YEARS,
M.T.HOUSE, MUTTUNGAL WEST P.O., VADAKARA,
KOZHIKODE DISTRICT.
R1 BY ADVS. SMT.C.G.PREETHA
SRI.P.S.SREEDHARAN PILLAI
R3 BY ADVS.SRI.A.A.ZIYAD RAHMAN
SRI.S.MAMMU
R4, R6 & R7 BY ADV. SRI.V.MADHUSUDHANAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ss
P.N. Ravindran &
K. Ramakrishnan, JJ.
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M.A.C.A.No.1904 of 2006
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Dated this the 17th day of March, 2016
JUDGMENT
P.N. Ravindran, J The appellant is the seventh respondent in O.P.(M.V.).No.205 of 1999 on the file of the Motor Accidents Claims Tribunal, Vadakara. He and respondents 4, 5, 6 and 7 in the appeal are the legal heirs of the first respondent therein, who was impleaded in his capacity as the owner of a jeep bearing Reg.No.KBF-7473. The first respondent in this appeal had in O.P.(M.V.)No.205 of 1999 prayed for award of the sum of 5,00,000/- as compensation for the injuries sustained by him in a motor accident involving the aforesaid jeep. He had in the claim petition averred that on account of the rash and negligent driving of the aforesaid jeep in which he was a passenger, by the second respondent in the claim petition, the jeep hit against a tree and overturned and in that accident he sustained serious injuries, resulting in his hospitalization and treatment as an inpatient for 53 days. He contended that the accident took place on account of the negligence of the second respondent before the tribunal, who is the second respondent in the instant appeal as well.
2. After the first respondent/the registered owner of the jeep M.A.C.A.No.1904 of 2006 2 was served, he passed away and thereupon his legal heirs were impleaded as supplemental respondents 4 to 8 in the claim petition. Neither the second respondent driver nor the legal heirs of the owner filed a written statement, with the result they were set ex-parte. The third respondent, the insurer of the jeep filed a written statement contending that the accident occurred on account of the overloading of the vehicle and there was breach of policy conditions. It contended that the policy of insurance covers only five passengers, but the jeep was carrying twelve passengers at the time of the accident and therefore, it is not liable to pay any compensation. Before the Motor Accidents Claims Tribunal no oral evidence was adduced by either side. The claimant however produced and marked Exts. A1 to A10 series. Ext.A9 is the sonography report and Ext.A10 series are the medical bills. He was subjected to medical examination by a Medical Board and the report submitted by the Medical Board was marked as Ext.X1 and the case sheet accompanying it was marked as Ext.X2. The third respondent insurer produced and marked as Ext.B1 a copy of the policy of insurance issued by it.
3. After considering the rival contentions and the case sheet (summoned from Medical College Hospital, Kozhikode, where the claimant had undergone treatment and was marked as Ext.X2), the tribunal held that the accident took place on account of the rash and M.A.C.A.No.1904 of 2006 3 negligent driving of the jeep by the second respondent. Though the contention of the third respondent insurer that the second respondent driver did not possess a valid driving licence and badge was repelled, the tribunal permitted the insurer to recover the compensation paid under the award from the legal heirs of the insured and the second respondent driver on the ground that the vehicle was over crowded at the time of the accident. The tribunal held that though the carrying capacity of the jeep is only six, more than 10 passengers were travelling in the jeep. Reliance was placed on Ext.A1 first information report in coming to the said conclusion. The tribunal thereafter proceeded to award the sum of 1,61,481/- as compensation to the claimant and directed the third respondent insurer to pay the said amount with interest and costs, but permitted it to recover the amount thus paid by it from the second respondent driver and the legal heirs of the registered owner who were impleaded as respondents 4 to 8. The 7th respondent, one among the legal heirs of the registered owner of the jeep has filed this appeal, challenging the award to the extent it permits the insurer to recover the compensation amount paid by it from him and the other legal heirs of the registered owner of the jeep.
4. When this appeal came up for consideration before us on an earlier occasion, namely on 29.06.2015, after hearing learned counsel on both sides, we directed the third respondent to file an M.A.C.A.No.1904 of 2006 4 affidavit and furnish the details of the awards passed in the various claim petitions arising out of the accident which took place on 25.10.1998 involving the jeep bearing Reg.No.KBF-7473. We further directed that the affidavit shall also disclose the quantum of compensation paid by the insurer in the aggregate as also the compensation paid to each of the claimants. Pursuant to that order, the authorised signatory in the Regional Office of the New India Assurance Company Ltd., at Ernakulam has sworn to an affidavit dated 07.07.2015 setting out the details of the awards passed in respect of the very same accident and the payments made by it. The details are furnished below:
Sl.No. OPMV MACT Petitioner Amount paid Date of payment 1 226/1999 Vadakara Sureshan 6,000/- 23/05/2000 2 231/1999 " Rajeevan 4,000/- 12/05/00 3 230/1999 " Manoharan 8,000/- 12/05/00 4 229/1999 " Ramesh Babu 13,000/- 12/05/00 5 223/1999 " Riji 5,000/- 12/05/00 6 222/1999 " P.P.Sumesh 5,500/- 12/05/00 7 228/1999 " Anil Kumar 7,000/- 12/05/00 8 247/1999 " Ganesh 11,000/- 12/05/00 9 224/1999 " Mukundan 4,750/- 12/05/00 10 225/1999 " Santhosh 8,500/- 12/05/00 11 227/1999 " Mini 11,500/- 12/05/00 Total 84,250/-
5. It is evident from the aforesaid affidavit that besides the claimant in the instant case (the first respondent in this appeal), M.A.C.A.No.1904 of 2006 5 eleven other passengers were travelling in the jeep when it capsized after hitting against a tree standing by the road side.
6. It is not in dispute that the driver was not one among the persons who had suffered any injury. He had also not filed a claim petition. The 12 claim petitions were filed by 12 different passengers.
The policy of insurance issued by the third respondent covers only six persons including the driver. Since the driver had not filed a claim petition, the third respondent insurer is liable to satisfy only the claims of five passengers. It is evident from the affidavit filed by the third respondent/insurer that there were 11 other claims which arose out of the same accident and a total sum of 84,250/- had been paid as compensation. The highest amount paid in the aforesaid 11 cases is 13,000/-, the next lowest is 11,500/-, the next is 11,000/- and the next is 8,500/-. The award passed in the instant case is for payment of the sum of 1,61,481/- with interest at 6% per annum from the date of petition till the date of payment as also the sum of 4,250/- as costs. The award passed in the instant case is therefore the highest among the awards passed in respect of the 12 claims that arose from the very same accident.
7. The Apex Court has in National Insurance Company Ltd., v. Anjana Shyam [2007(3) KLT 993(SC)] held that, if more number of persons than the permitted capacity are carried in a motor M.A.C.A.No.1904 of 2006 6 vehicle, the liability of the insurer will be confined to the permitted seating capacity. It was held that after quantifying the actual amount payable by the insurer, the maximum amount payable under the insurance policy will have to be distributed among the claimants concerned based on the ratio or proportion fixed by the tribunal. Later, in United India Insurance Company v. Poonam (2011(3) SCC
475), the Apex Court held, after referring to its earlier decision in National Insurance Company Ltd., v. Anjana Shyam (supra), that where more persons in excess of the permitted seating capacity are carried in a motor vehicle, it will be open to the insurer to have the amount covered by the awards recovered from the owner, after satisfying the awards, except the amount covered by the highest awards payable in relation to the maximum seating capacity. In other words, if the maximum seating capacity of the motor vehicle covered by the policy is five, the insurer will be liable to satisfy the awards passed only in respect of five claims, subject to the condition that the claim petitions should be petitions where the highest awards have been passed. Thereby, the owner will be liable only in respect of claims wherein lesser amounts have been awarded as compensation.
8. It is evident from the materials now before us that the motor vehicle in which the claimant in the instant case was travelling was overloaded. Instead of five passengers and the driver, it was M.A.C.A.No.1904 of 2006 7 carrying seven more passengers including the claimant. Going by the decisions of the Apex Court referred to above, the insurer is liable to satisfy five among the highest awards. The highest award is the one passed in the instant claim petition. Applying the principles laid down by the Apex Court, the insurer will be liable to satisfy besides the award in the instant case, the awards passed in O.P.(M.V.)Nos.229 of 1999, 247 of 1999, 225 of 1999 and 227 of 1999. The insurer will be entitled to recover from the insured, namely the appellant in this appeal only the compensation paid by it in the seven other claim petitions.
9. It is also evident from the materials before us that in the awards passed in the other cases, the third respondent has not been given the right of recovery. It has also not filed appeals challenging the said awards. As a matter of fact, the other 11 claim petitions were settled out of court. Having regard to the fact that the insurer is liable to satisfy only five of the highest awards, we are of the opinion that this appeal can be disposed of by directing the insurer to satisfy this award as also four other highest awards in the claim petitions referred to above and recover only the balance amount from the appellant. In other words, the third respondent insurer will be entitled to recover only the sum of 40,250/- paid by it as compensation in O.P.(M.V.) Nos.222 of 1999, 223 of 1999, 224 of 1999, 226 of 1999, 228 of M.A.C.A.No.1904 of 2006 8 1999, 230 of 1999 and 231 of 1999, together with interest on the said amount at 6% per annum from 12.05.2000, the date on which the aforesaid sum was paid to the claimants, by recourse to the Kerala Revenue Recovery Act, 1968.
We accordingly dispose of the appeal with the aforesaid observations and directions. The parties shall suffer their respective costs.
Sd/-
P.N.RAVINDRAN (JUDGE) Sd/-
K.RAMAKRISHNAN (JUDGE) //True Copy// P.A. to Judge ss M.A.C.A.No.1904 of 2006 9 P.N. Ravindran & K. Ramakrishnan, JJ.
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M.A.C.A.No.1904 of 2006
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Dated this the 17th day of March, 2016 ORDER P.N. Ravindran, J Admit. The appellant is the seventh respondent in O.P.(M.V.) No.205 of 1999 on the file of the Motor Accidents Claims Tribunal, Vadakara. Respondents 1, 3, 4, 6 and 7 have been served and they have entered appearance. Though respondents 2 and 5 have not been served, in view of the fact that the order which we propose to pass in the appeal will not cause any prejudice to them, we are of the opinion that notice to respondents 2 and 5 can be dispensed with. We accordingly dispense with notice to respondents 2 and 5. Service complete.
P.N.RAVINDRAN (JUDGE) K.RAMAKRISHNAN (JUDGE) ss M.A.C.A.No.1904 of 2006 10