Oriental Insurance Co. Ltd. vs Mohammad Rashid & Ors.

Appeal filed by the appellant-Insurance Company both on quantum and liability.

The accident in this case happened on 20th August 2011. The Mini Bus bearing registration No. JK12-1547, in which more than 40 passengers

was proceeding from Poonch to Surankote and the driver of the offending vehicle Shakeel Hussain, was driving it in a rash and negligent manner as

a result he lost control over the vehicle which fell down 100 feet deep gorge. In this accident 19 passengers sustained injuries and 21 died. One of

the clam is the subject matter of the present appeal.

In the instant appeal, Jahangir Ahmad S/O Mohammad Rashid Parray R/O Village Lassana, Tehsil Surankote, Poonch died. On his death,

widow, father and mother, filed the claim petition before the Motor Accident Claims Tribunal, Srinagar. It is stated that the deceased was working

as Teacher and his income was Rs. 18,132/- per month and a claim for grant of compensation in the sum of Rs. 50.00 lacs was made on various

heads. The Tribunal granted the compensation of Rs. 31,69,258/- in the following manner:-

(i) Pecuniary Loss to dependents Rs. 30,44,258/-

(ii) Burial Expenses Rs. 25,000/-

(iii) Loss of Consortium to widow Rs. 100,000/- with interests at the rate of 6%.

The learned counsel for the appellant and respondents/claimants after discussion have agreed to a reduced compensation and in view of the

same, award stands reduced to Rs. 30,19,258/ with interest at the rate of 6%. The claimants will be entitled to withdraw the amount of Rs.

30,19,258/ with 6 % interest.

In so far as the liability is concerned, it is pleaded that Mni Bus was overloaded and therefore, breach of Policy. The offending vehicle was

carrying more than 40 passengers whereas its seating capacity is 26+2(Driver and Conductor).

The driver and the owner of the vehicle breached the policy conditions by carrying 40 passengers which fact is not in dispute. Since the

offending vehicle was admittedly overloaded with 12 passengers, the liability of the Insurance Company will cover the highest in respect of 26+2

claimants. In so far as excess they will pay and recover as held by the Hon''ble Apex Court.

In United India Insurance Co. Ltd. v. K.M. Poonam and Others, 2011 ACJ 917, the Hon''ble Supreme Court in para 26, held as follows:-

Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons

travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same

problem as had surfaced in Anjana Shyam''s case (supra). The number of persons to be compensated being in excess of the number

of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid.

Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation

would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur''s case

(supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the

amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the

amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy

from the owner of the vehicle, as was directed in Baljit Kaur''s case.

In view of the above, the he appellant-insurance Company is therefore, liable to first settle the highest of 28 claims In so far balance claims it will

pay the claimants and thereafter, recover the excess paid amount from the owner of the offending vehicle as per law.

The last plea of the appellant-Insurance Company, is that the driver of the offending vehicle was not having the valid driving license at the time of

accident. The plea has to be rejected at the threshold taking note of the reasons recorded by the learned Tribunal that despite granting ample time,

appellantInsurance Company has not taken the adequate steps to prove that the license was invalid. It is case in default. This plea is therefore

rejected.

In this view of the matter, appeal is partly allowed in the above terms.