Insurance liability remains despite policy breach if driving negligence caused the accident.

JUDGMENT

The appellant/2^nd respondent Insurance company has filed this Civil Miscellaneous Appeal against the fair and decretal order dated 30.07.2001 made in M.C.O.P.No.276 of 1997 by the learned Subordinate Judge, Motor Accident Claims Tribunal, Pudukkottai.

2.The brief case of the claimants is as follows:-

On 16.07.1997, one Solai who was the driver of the bus bearing registration No.TN 49-B 0955 drove the vehicle from Pattukkottai to Pudukkottai. When the bus was nearing Karambakkudi, the said Solai drove the vehicle in a rash and negligent manner without observing any traffic regulation. When he attempted to overtake a cyclist in front, he lost control of the bus and the bus was trembling down twice in Pudukulam tank abutting the main road. It was overloaded with 110 passengers. The deceased Santhosh Kumar was travelling in the bus besides his parents and brothers, he died on the spot. Nearly 50 persons got seriously injured in the accident. The driver and son of the claimants also died instantaneously. The accident was due to rash and negligent driving of the driver Solai. So the 1st respondent is liable to pay for the damages suffered by the claimants, as the owner of the vehicle bearing registration No.TN 49 B 0955. The deceased was aged about 10 years and he was studying 5th Standard. He was a bright student with good educational career and was outstanding student and his death cannot be measurable in terms of money. The claimants restricted their claim to the tune of Rs.5,00,000/- for the death of their son.

3. The second respondent, insurance company filed the counter by disputing the manner of the accident and stated that the driver was not driven the vehicle in a rash and negligent manner. But when the driver overtook the cyclist by swerving to the right to avoid hitting the cycle, the mud portion of the road gave way and the vehicle capsized.

The accident occurred due to the lack of road facility.

4. The second respondent also filed an additional counter statement, contending that the 1st respondent had violated the terms and condition of the policy. As per the policy, the vehicle was permitted to carry only 56 passengers plus 2 staff, however at the time of accident, it was carrying around 110 passengers. The 1^st respondent thus carried many 52 passengers in excess of the permitted capacity, which contributed to the cause of accident. The second respondent further contented that the policy coverage extended only to the passengers lawfully permitted to be carried. The deceased was not a passenger within the meaning of the terms of policy as interpreted in its proper context and thereforethe second respondent is not liable to pay any compensation.

5. During trial, on the side of the petitioner, P.W.1 was examined and Exs.P1 to P4 were marked. On the side of the respondents, R.W.1 was examined and Ex.R1 was marked.

6. After hearing all the parties and perusing the records, the Tribunal awarded a sum of Rs.1,50,000/- as compensation and the respondents are jointly and severally liable to pay the compensation within a period of one month.

7. Aggrieved by the said order of the Tribunal, the present Civil Miscellaneous Appeal has been filed by the Insurance Company, which was the 2^nd respondent before the Tribunal challenging the liability fastened upon them. The appellant contends that the Tribunal, erred in directing the insurance to pay compensation on the erroneous assumption that carrying passengers in excess of the permitted limit would not amount violation of the terms and condition of the policy. The appellant submits that the insured had carried more passengers than their number, permitted under the policy, thereby constituting a clear