The liability of the insurer is confined to the number of persons covered by the insurance policy, and the insurer's liability in cases of overloading is limited to the terms of the insurance contract.

Mansoor Ahmad Mir, J.

This appeal is directed against the judgment and award dated 20.12.2010, made by the Motor Accident Claims Tribunal, (II), Una, H.P. in MACP RBT No. 93/2000-61/98, titled Smt. Gurmeet Rani and others versus Sh. Deepak Kumar and others, for short “the Tribunal”, whereby compensation to the tune of Rs.4,68,000/- came to be awarded in favour of the claimants alongwith interest @ 9% per annum, with Rs.1000/- as costs, hereinafter referred to as “the impugned award”, for short.

2. Claimant, driver and owner have not questioned the impugned award on any ground, has attained the finality, so far as it relates to them.

3. Appellant/insurer has questioned the impugned award on the grounds;

(i) That the insured has committed willful breach;

(ii) That the vehicle was carrying the passenger more than the permissible capacity, thus, the insurer was not liable; and,

(iii) that the amount awarded is excessive.

4. All the above grounds are not tenable and devoid of any force for the following reasons.

5. The claimants have proved by leading evidence that the driver, namely, Deepak Kumar has driven the vehicle rashly and negligently and caused the accident. The Tribunal has specifically recorded in para 20 of the impugned award that the FIR was lodged against the driver, investigation was conducted and final repot was presented against the driver. The driver and owner have not questioned the said findings. Thus, the insurer has no right to question the said findings. Even otherwise, I have gone through the record. Prima facie there is proof on the file which is made basis for holding that the driver has driven the vehicle rashly and negligently in which the deceased sustained the injuries and succumbed to the same. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld.

6. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3, 4 and 5 at the first instance. The insurer had to prove these issues. Insurer has only examined Smt. Amarjit Kaur, Clerk from the office of District Transport Officer, Hoshiarpur. She has stated that the driver was having a valid and effective driving licence, the discussion of which has been made in paras 30 to 33 of the impugned award. It was for the insurer to plead and prove that the owner/insured has committed willful breach, has not led any evidence. Issue No. 5 was not pressed by the insurer. Thus, the insurer has failed to discharge the onus on these issues. The Tribunal has rightly decided these issues against the insurer.

7. The learned counsel for the appellant has argued that the vehicle was carrying the passenger more than the permissible capacity. It is for the insurer to press this issue at the relevant point of time because as on today there is only one claim petition before this Court. The insurer is at liberty to take this ground at an appropriate stage, in the appropriate proceedings.

8. The Apex Court in the case titled as United India Insurance Company Limited versus K.M. Poonam & others, reported in 2011 ACJ 917, has laid down the law. It is apt to reproduce para 24 of the judgment herein:-

“24. 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 carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Sec