Overloading does not constitute a substantial breach of insurance policy terms unless it contributed to the accident, as established in B. V. Nagaraju v. Oriental Insurance Co. Ltd. and Skandia Insurance Co. Ltd.

( 1 ) THESE appeals arise out of the claim petitions preferred by the claimants with respect to an accident dated 9. 5. 2001. M. A. No. 300 of 2003 has been preferred by the claimant for enhancement of compensation. Rest of the appeals have been preferred by the insurer, National insurance Co. Ltd. assailing the award imposing liability on the ground of violation of terms and conditions of the insurance policy.

( 2 ) DECEASED and the injured persons were travelling in bus bearing No. MP 7-F 2628. It was driven by Mantu alias Devisingh, owned by Pravin Kumar Tyagi and insured with National Insurance Co. Ltd. The bus was going from Gwalior to Guna. It was alleged that Mantu alias Devisingh drove the said bus in a rash and negligent manner, due to which before 6 km to Guna the bus turned turtle at A. B. Road. Several persons died on the spot, others succumbed to the injuries during the course of treatment and some of them sustained grievous injuries. Separate claim petitions were preferred by the claimants in various courts claiming compensation. The owner and driver were proceeded ex parte before the tribunal. They did not put in appearance in spite of service.

( 3 ) THE insurer in the reply contended that the vehicle was insured to cover the risk of 35 persons as per the conditions of the insurance policy. Only 35 persons could have been carried in the said bus. At the time of the accident 83 persons were travelling in the bus. The intimation of accident was not furnished by the insured to the insurer. Driver was not having valid and effective driving licence. Excessive compensation was claimed.

( 4 ) LEARNED Claims Tribunal has found that the accident was the outcome of rash and negligent act of driving by said Mantu alias Devisingh. Merely because more persons than insured were taken in the bus at the time of accident it could not be said to be a case of substantial breach on the part of the owner and insurer could not escape from the liability with respect to claimants. The number of persons in the vehicle had not contributed to the accident. In each case, compensation has been determined and has been ordered to be paid along with interest at the rate specified in the award.

( 5 ) MR. B. N. Malhotra, learned counsel appearing on behalf of insurer, National insurance Co. Ltd. has assailed the award on the ground that there was substantial breach of the policy of insurance. As per the condition of the permit, 35 passengers could have been carried in the vehicle, whereas 83 persons were carried in the vehicle, some of them were sitting on the roof of the bus. Thus, it could not be said to be a case where insurer could be saddled with the liability to make payment of compensation as there was substantial breach on the part of the owner. More than 40 cases have been filed claiming compensation, whereas the vehicle was insured to cover the risk of thirty-five persons. He has also submitted that in the cases relating to death the compensation awarded is on higher side, same be suitably reduced.

( 6 ) MR. B. D. Verma, learned counsel appearing on behalf of claimants-appellants in M. A. No. 300 of 2003 filed for enhancement of compensation has submitted that the deceased was in employment. His age was between the age group of 35 and 40 years. He was earning a sum of Rs. 2,450 per month as apparent from the deposition of the witnesses; Asha Devi, CW 1, Pramod umarkar, CW 2, Haridas, CW 3 and prabalpratap Singh, CW 5. Salary certificate, Exh. P1, was also filed, which has been ignored by learned Claims Tribunal. Thus, just compensation be awarded on a proper assessment.

( 7 ) MR. B. N. Malhotra, learned counsel appearing on behalf of the insurer with usual vigour has resisted the claim for enhancement of compensation. ( 8 ) FIRST coming to question of quantum of compensation in each of the cases: m. A. No. 300 of 2003: this appeal has been filed for enhancement of compensation. The claimants are widow and children of th