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2016 Supreme(Online)(KER) 28174
HIGH COURT OF KERALA
P.R.RAMACHANDRA MENON, ANIL K. NARENDRAN, JJ
JOSE – Appellant
Versus
M.K.SOMAN – Respondent
MACA/1191/2011
SRI.G.RAJAGOPAL, SRI.RAJAN P.KALIYATH
Insurance companies cannot fully absolve liability for accidents due to violations of permit conditions, but their liability is restricted to the vehicle's seating capacity.
Headnote:
Insurance - Motor Accident Claims - Various Sections - The court analyzed the liability of the insurance company under the policy following an accident, emphasizing that liability should not be absolved when permit conditions are breached, but restricted to the prescribed seating capacity.
Fact of the Case:
An autorickshaw accident resulted in injuries to four passengers due to alleged negligence by the owner-driver. The insurance company contested liability, arguing a breach of permit conditions due to passengers exceeding the permitted capacity.
Finding of the Court:
The court found that while the insurance company's liability should not be discharged solely due to the breach of permit conditions, it could only be held liable for claims proportionate to the permitted seating capacity.
Issues: Whether the insurance company can absolve itself from liability due to the breach of permit conditions by carrying excess passengers in the autorickshaw.
Ratio Decidendi: Citing precedent, the court determined that an insurance company's liability can be limited to the maximum number of passengers allowed under the policy, despite violations by the driver.
Final Decision: The appeals were disposed of, directing partial reimbursement to the appellant by the insurance company.
JUDGMENT
P .R.RAMACHANDRA MENON, J.
These appeals arise out of a common cause of action pertaining to an accident involving autorickshaw bearing registration No.KL-7L-1296 owned and driven by the 1st respondent and insured by the 2nd respondent. Four persons were travelling in the said autorickshaw on 2.12.2001. When it reached the place of occurrence, allegedly because of the negligence on the part of the owner-cum-driver of the autorickshaw, the vehicle overturned and the passengers were thrown out from it, causing serious injuries, which led to four different claim petitions before the Tribunal.
2. The owner-cum-driver of the autorickshaw did not choose to contest the matter and was set ex parte. The matter was contested by the Insurance Company, mainly raising a contention that there was violation of the permit condition, in so far as more number of persons were carried in the autorickshaw than the permitted seating capacity, of 'three'. After evaluating the facts and circumstances, different amounts were awarded by the Tribunal
1155,1191 & 1340/11 -2-
under different heads. The total amounts of compensation awarded in the different claim petitions are as given below:
OP(MV)No.807/2002 Loss of income : ₹4,000/-
Transportation expenses : ₹ 750/- Extra nourishment : ₹ 750/- Damage to clothings : ₹ 250/-
Attendant's charges : ₹1,500/- Treatment expenses : ₹4,805/- Pain and suffering : ₹3,000/- Loss of amenities : ₹2,000/-
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Total : ₹17,055/-
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OP(MV)No.839/2002 Loss of income : ₹ 8,000/- Transportation expenses : ₹ 1,500/- Extra nourishment : ₹ 1,000/-
Damage to clothings : ₹ 250/-
Attendant's charges : ₹ 5,000/- Treatment expenses : ₹40,980/- Pain and suffering : ₹15,000/- Loss of amenities : ₹ 10,000/-
Discomfort and disability : ₹ 10,000 --------
Total : ₹91,730/-
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OP(MV)No.905/2002 Loss of income : ₹ 2,000/- Transportation expenses : ₹ 500/- Extra nourishment : ₹ 500/- Damage to clothings : ₹ 250/- Attendant's charges : ₹ 300/- Treatment expenses : ₹ 500/- Pain and suffering : ₹2,000/- Loss of amenities : ₹1,000/-
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Total : ₹7,050/-
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1155,1191 & 1340/11 -3-
OP(MV)No.913/2002 Loss of income : ₹1,000/- Transportation expenses : ₹ 500/- Extra nourishment : ₹ 500/- Damage to clothings : ₹ 250/- Attendant's charges : ₹ 500/- Treatment expenses : ₹ 640/-
Pain and suffering : ₹1,500/- Loss of amenities : ₹1,000/-
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Total : ₹5,890/-
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3. The Tribunal observed that by virtue of the contents of the policy, (copy of which was produced as Ext.B1), the maximum number of passengers who could be permitted to be carried in the autorickshaw was only 'three', whereas 'four' persons were being carried at the time of accident, which was a clear violation of the permit granted to the autorickshaw. It was accordingly that the liability was directed to be satisfied by the Insurance Company, however granting right of recovery reserved in favour of the Insurance Company. This made the owner-cum- driver to feel aggrieved and hence the present appeals with petitions to condone delay in filing the same( which have been condoned by us vide separate order passed today).
4. Heard the learned counsel for the parties on both the
1155,1191 & 1340/11 -4-
sides. The crucial question to be considered is whether the liability can be sought to be absolved by the Insurance Company or could they claim the right of recovery in toto, merely for the reason that more number of passengers were carried in the vehicle at the relevant point of time, than the permitted seating capacity. This issue had come up for consideration before the Apex Court and as per the decision reported inNational Insurance Co. Ltd. v. Anjana Shyam ( 2007 (3) KLT 993 ), the Apex Court held that the Insurance Company cannot seek to be absolved under such circumstances. However, it was made clear that the liability of the Insurance Company would stand restricted/confined to the maximum liability payable, reckoning the total seating capacity of the vehicle, for which the policy was is
