In determining compensation for personal injury, the court considers the claimant's income, disability, and medical expenses, and overloading alone does not constitute a fundamental breach of the insurance policy.

K. Kannan, J.

C.M. No. 32745-CII of 2010:

1. The application is for condonation of delay.

For the reasons stated in the application, application is allowed. Delay of 90 days in filing the appeal is condoned.

F.A.O. No. 7417 of 2010:

There is an application u/s 170 of the Motor Vehicles Act, 1988 by the insurance company and that it had been dismissed three months earlier and the dismissal is also urged as a ground in appeal. Learned counsel states that Tribunal had awarded compensation of Rs. 12,50,000. Although the amount claimed in the petition was Rs. 9,00,000, the court's power to grant compensation in an excess amount of what is claimed is too well established for reappraisal. I will still consider whether the amount awarded was very high. There was evidence in this case that he was doing business in milk and dairy farming also and was running a grocery shop. The Sarpanch had been examined to say that he was maintaining three buffaloes, he was earning Rs. 10,000 per month. The Tribunal took his income to be Rs. 6,000 and based on the evidence that claimant had suffered a spinal injury that had resulted in 100 per cent disability adopted a multiplier of 18 for a person who was aged 24 years and determined compensation of Rs. 10,00.000 as loss due to impairment of his earning capacity and also added amount of Rs. 1,00,000 towards pain and suffering, Rs. 40,000 for attendant charges, Rs. 20,000 for special diet and Rs. 10,000 towards transportation. Although the Tribunal had referred to medical bills of Rs. 2,70,000, the amount had not been really added. Even if the income of the claimant were to be taken as Rs. 4,000 instead of Rs. 6,000 and if the medical bills were also to be added, the amount awarded will still be appropriate and just in the case. A young man of 24 years had through the accident come by a stage of fatal immobility and he had to be brought to court in a wheelchair. The compensation awarded does not appear to be exorbitant and unreasonable, I will not make any intervention in the appeal. It is also contended that the claimant was one of 12/13 persons travelling in the car while the seating capacity for the vehicle was 9 persons. Unless accident was only on account of overloading, it cannot avail to an insurer to contend that merely because there were more passengers than what was provided as seating capacity for the vehicle, the insurance company cannot contend that there had been any fundamental breach of terms of policy. So long as there were not more than 9 claimants there is no scope for any abatement of claim and the owner and the driver will be entitled to full indemnity from the insurer. The said objection is also, therefore, rejected. The award is confirmed. The appeal is dismissed.