The insurer cannot deny liability for compensation based on overloading unless it is proven that such overloading contributed to the accident.

JUDGMENT

This appeal has been filed by the third respondent insurer in OP(MV) No.2098 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam, seeking a direction to recover the compensation amount from the insured/owner of the offending vehicle. The respondents 1 & 2 herein, who were the owner and driver of the offending vehicle respectively, were respondents 1 & 2 before the tribunal.

2. The claim petition was filed by the legal heirs of one Mr.Antony @ Kuttan, who lost his life in an accident that occurred on 29.04.2006. The case of the claimants before the tribunal was that on 29.04.2006, while the deceased was travelling in a goods vehicle bearing Reg.No.KL-07-/BA 727 along with his goods through Chellanam - Pandikudy road, driven by the second respondent in a reckless manner, the vehicle overturned, as a result of which the deceased sustained fatal injuries and succumbed to the injuries. The claimants approached the tribunal claiming a total compensation of ₹7,00,000/-. Respondents 1 and 2 remained ex parte before the tribunal. The insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A11 were marked on the side of the claimants and Ext.B1 on the side of the insurer. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the driver of the offending vehicle and awarded a sum of ₹7,05,310/- as compensation under different heads against the insurer. The insurer has come up in appeal, seeking a right of recovery of the compensation amount against the first respondent, who was the insured and owner of the offending vehicle.

3. Heard the learned Standing Counsel for the appellant insurer and the learned counsel for the respondents.

4. The learned Standing Counsel for the insurer submitted that altogether there were six persons travelling in the offending goods vehicle with a permitted seating capacity of one plus one; and hence, there was breach of policy conditions and permit violation. Therefore, according to the learned Standing Counsel, the insurer has no liability to indemnify the insured.

5. Per contra, the learned counsel for the respondents, submitted that the deceased was travelling along with the driver in the front seat and while so, the offending vehicle overturned causing fatal injuries to the deceased resulting in his death. It is further submitted that though the persons other than the deceased, who were travelling in the offending vehicle, also sustained injuries, they have not approached the tribunal claiming compensation. It is pointed out that Ext.B1 policy covers the driver plus one person and hence, since the claim of compensation is made only in respect of the deceased, the insurer is not entitled for any right of recovery against the first respondent/owner of the offending vehicle.

6. I have considered the rival contentions raised on both sides. Ext.B1 is the true copy of the policy. The offending vehicle was proceeding carrying goods, alleged to be belonging to the deceased, who was, admittedly, travelling in the front seat sharing the driver’s seat. Ext.B1 policy coverage is for the driver and one passenger in the vehicle. B.V. Nagaraju v. Oriental Insurance Co. Ltd. [ 1996 ACJ 1178 (SC) ] was a case, wherein the permit in respect of the offending vehicle was only to carry six workmen including the driver, but more persons were permitted to travel. The apex court in the afore case took the view that, "the misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident". In the instant case, though there were additional passengers in the offending vehicle, it is not proved by the insurer that the overloading contributed to