Point of Law: Practical and the proper course would be to hold that the insurance company would be bound to cover the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy.

JUDGMENT :

Heard Ms. S. Roy, the learned counsel for the appellant and also heard Mr. P.A. Ahmed, the learned counsel for the respondents 1 and 2. None appeared for the other respondents.

2. This appeal has been filed challenging the judgment and award dated 12/05/2014 passed in MAC Case No. 2507/2012 by the Member, Motor Accident Claims Tribunal No. 2, Kamrup(Metro), Guwahati, whereby the Court below awarded an amount of Rs. 9,03,000/- for the death of Sirajul Hoque. The appellant, i.e., the insurance company was directed to pay the awarded amount to the claimant within a period of 90 days from the date of the award, i.e. 12/05/2014 along with interest @ 6 % from the date of filing of the Claim Petition till its realization. It was also directed that Rs.3,00,000/- of the awarded sum will be kept in a fixed deposit in the name of the claimant No. 1 in any Nationalized Bank of her home district for a period of three years. It was also directed that the insurance company would be entitled to deduct the interim compensation paid to the claimant, if any, from the awarded amount.

3. The appellant, i.e., the insurance company have assailed the impugned judgment and award dated 12/05/2014 on the ground that the Court below, while passing the award, failed to take into consideration that the sitting capacity of the vehicle in question was 38 passengers including driver and the evidence on record clearly indicated that there were 55 passengers including driver on board in the said vehicle, for which the driver failed to concentrate on the wheels at the right time and he got unmindful during late night, which led to the accident. It has been submitted on behalf of the appellant that though, it is admitted that the ill-fated vehicle was insured, but it was limited to only 38 passengers. In this regard, the counsel for the appellant draws my attention to the evidence of one Tapan Chakraborty, who deposed as DW-1 as well as the Exhibits marked as Exhibit A, B, B(1) and Exhibit–C.

4. From a perusal of the Exhibit-C, it transpires that the insurance company insured the ill-fated vehicle with a sitting capacity of 38 passengers. Ext.-B and Ext. B1 are the extracts of the copy of the Lumshnong AD Camp GDE No. 110 dated 08-08-2012 as well as extract copy of Lumshnong AD Camp GDE No. 115 dated 08-08-2012,wherein, it has been categorically mentioned that the ill-fated vehicle fell into a deep gorge at a distance of about 400 ft. from the main road and consequently 28 passengers including two women, main driver and handyman died instantaneously at the spot and 27 passengers, including the driver, sustained injuries thereby showing that the said ill-fated vehicle was plying with 55 occupants which was beyond the insured limit.

5. It is further the submission of the appellant that the Court below failed to take into consideration that there was a breach in the conditions of the insurance agreement between the owner and the insurance company. The Court below could not have directed the insurance company alone to make payment of the entire claim amount. The counsel for the appellant submits that the Supreme Court in the case of United India Insurance Co. Ltd. Vs. K.M. Poonam and Ors. reported in (2015) 15 SCC 297, held that the liability of the insurance company is confined to the number of passengers covered by the insurance policy and not beyond the same. In this regard, the learned counsel for the appellant referred to paragraphs 36,37, 38, 39 and 40 of the said judgment and for the sake of convenience, the same are quoted here-in-below :-

“36. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons ca