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Judgment
Ajit J. Gunjal, J.—This judgment excludes M.F.A. Nos. 7196, 7197, 7198/1997.
All these appeals are disposed of by this common judgment.
In all 26 claim petitions were filed before the Tribunal and four claim petitions were filed before the Commissioner for Workmen''s Compensation.
The Tribunal pursuant to the common judgment and separate awards has disposed of all the claim petitions holding that the driver of the vehicle in question was responsible for the accident inasmuch as he was driving the said vehicle in a rash and negligent manner.
Insofar as the quantum is concerned, having regard to the various claim petitions filed with reference to death as well as personal injuries, the Tribunal has awarded various sums to the claimants. We notice that out of 26 claim petitions there are no appeals questioning the judgment and award insofar as where the compensation determined is less than Rs. 10,000/-, The remaining 13 appeals are in respect of claim petitions where the compensation determined is more than Rs. 10,000/-.
We also notice that two of the claim petitions were dismissed i.e., M.V.C No. 1014/2001 & M.V.C. No. 23/2001.
The facts pleaded can be summarized as follows:
All the claimants boarded the lorry on 27.3.2000 at Challakare along with their goods and luggage by paying fare and charges to go to their respective villages. When the driver of the lorry was near Chitranayakanahalli Cross, he drove it in a rash and negligent manner and the vehicle capsized on the left side of the road. As a result of such capsize it rolled 2 or 3 times and the claimants have suffered various types of injuries both grievous and simple injuries and some of the occupants have also died.
The claimants in M.F.A. Nos. 4186/2005, 4190/2005, 4204/2005, 4194/2005, 4207/2005, 4182/2005, 4198/2005 and 4206/2005 are the legal heirs of the deceased claiming for compensation.
It is their case that the deceased were travelling in the lorry by carrying their luggage i.e., blanket bundles and other articles. Insofar as other claim petitions are concerned, they would refer to various injuries suffered by them.
The insurer would enter appearance and file objections inter alia contending that all the claimants are unauthorized passengers and they were neither carrying their goods nor travelling as loaders and un-loaders in the lorry. The alleged accident took place due to inevitable circumstances and beyond the control of the driver of the lorry. It is also contended by the insurer that the owner of the lorry had entrusted the lorry to a non-licensee. It is also their specific case that the maximum persons who are permitted to travel in such a lorry are 7 persons and not more than that.
With these spacious pleadings, the parties went to trial and the claimants in support of their respective contentions have let in evidence in respect of loss of dependency as well as the compensation, which is awardable to them for the personal injuries suffered by them.
The Tribunal having regard to the evidence let in was of the view that the accident indeed, had occurred due to the rash and negligent driving of the driver of the vehicle.
Insofar as compensation is concerned with reference to the earnings of the deceased and also the injuries with reference to pain and suffering and loss of amenities. the Tribunal has determined the compensation.
Incidentally, we notice that the claimants have accepted the judgment and award passed by the Tribunal insofar as the compensation is concerned.
All these appeals are by the insurers questioning the liability to satisfy the award on various grounds.
We have heard Mr. B.C. Seethararna Rao, learned Counsel appearing for the insurer as well as Mr. Nagaraja, learned Counsel appearing for the claimants.
Mr. B.C. Seethararna Rao, learned Counsel appearing for the insurer submits that the vehicle in question is a lorry, which is classified as a heavy goods vehicle. He submits that the liability of the insurer is to satisfy only seven persons with reference to Rule 100 of the Karnataka Motor Vehicles Rules, 1989. He further submits that notwithstanding the fact that the insurer had collected extra premium from two Non-Fare Paying Passengers, that by itself will not saddle the insurance company to answer the award in respect of others. He submits that at best the insurer is liable to satisfy only seven claims. He further submits that apart from 26 claim petitions, which were filed before the Tribunal, four claim petitions were filed before the Commissioner for Workmen''s Compensation and one of the claim petitions was subject matter of an appeal in M.F.A. No. 3791/2004. He further submits that the compensation as awarded by the Commissioner for Workmen''s Compensation has already been paid to the respective claimants. Hence, he submits that if at all the insurer is liable to satisfy the award, it is only in respect of the remaining three claim petitions. He further submits that having regard to the decision rendered by the Apex Court in the case of National Insurance Co. Ltd. Vs. Anjana Shyam and Others, , the insurer may be directed to pay the highest compensation payable to the claimants. He further submits that the claimants in M.F.A. No. 4206/2005 have specifically pleaded that the deceased was travelling as a gratuitous passenger. Hence, the question of insurer answering the said claim would not arise.
Mr. Nagaraja, learned Counsel appearing for the claimants submits that indeed, the insurer has satisfied the award insofar as four claims, which were filed before the Commissioner for Workmen''s Compensation. He further submits that the insurer has collected extra premium in respect of two Non-Fare Paying Passengers. Hence, the said two persons are also required to be included/added to the seven, which the insurer is statutorily liable to cover. He further submits that there shall be a ratable distribution of the compensation to the claimants.
We have given our anxious consideration to the submissions made by the learned Counsel appearing for the insurer as well as the Respondents.
It is not in dispute that the vehicle in question is a heavy goods vehicle. It is also not in dispute that the maximum capacity of the said vehicle is seven. The definition of heavy goods vehicle is to be found in Sub-Section 16 of Section 2 of the Motor Vehicles Act, 1988 which would read as under:
Heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.
Rule 100 of the Kamataka Motor Vehicles Rules, 1989, would relate to carriage of persons in goods vehicle. Indeed, the Proviso of Sub-Rule 1 of Rule 100 would indicate that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty may be carried in a goods vehicle, the total number of persons so carried (i) in any goods vehicle will not be more than seven.
There is no dispute as to the nature of the vehicle, which is involved in this accident. Indeed, it is a goods vehicle and Proviso 3 to Sub Rule 1 to Rule 100 of the Rules indicates that the maximum permissible limit is seven. To that extent we accept the contention of Mr. R.C. Seetharama Rao. But however, we hasten to add that other than the seven claims the insurer is also required to satisfy the claim in respect of two more claims. The reason for us to say so is because of the policy. The policy is classified into two schedules of premium. Schedule A would relate to ''Own Damage Basic" with which we are not concerned, We are concerned only with Schedule B ''Liability to Public Risk'' the amount, which is calculated as Rs. .2,779/- to that addition of legal liability to Non-Fare Paying Passengers as per IMT 13 and for Legal liability to Non Fare Paying Passengers as per IMT 14 additional premium has been collected. We are of the view that apart from 7 persons who are required to be covered statutorily under Rule 100 with reference to IMT No. 17, the insurer is liable to answer the claim in respect of two more claims inasmuch as they have collected additional premium. Indeed, we are of the view that it is a contract between the insured and the insurer and the insurer is required to honour the contract. The fact that the insurer has collected additional premium, they are required to satisfy two additional claims also.
This takes us to the next question as to how the ratable distribution is required to be done. Indeed, both Mr. B.C. Seetharama Rao, learned Counsel appearing for the insurer as well as Mr. Nagaraja, learned Counsel appearing for the claimants would press into service the ruling of Apex Court in the case of National Insurance Co. Ltd. Vs. Anjana Shyam and Others, . Indeed, identical question fell for consideration before the Apex Court. The vehicle involved in the said decision was a passenger vehicle, which had a permit to carry only 42 passengers. But whereas there were as many as 90 passengers being carried. The Apex Court was of the view that having regard to the number of persons to be carried in a vehicle with reference to the permit the insurer is liable to satisfy the claims in respect of 42 awards. We are of the view that the same exercise is required to be adopted by the Tribunal. It is useful to extract the observations made by the Apex Court in the said decision:
Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand 42 passengers were permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lumpsum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit; is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.
This takes us to the other claim petitions as well as the claims. Indeed, insofar as the claim petitions where the award is less than Rs. 10,000/-, we are of the view that it is the owner of the vehicle who is required to satisfy the award inasmuch as they are all small amounts. We also note that the insurer has satisfied the award passed by the Commissioner for Workmen''s Compensation in respect of four claims. To that extent we are of the view that the insurer is liable to answer the claim. We also note that a specific contention is urged by one of the claimants i.e., in M.F.A. No. 4206/2005 that the deceased was a gratuitous passenger. Hence, we are of the view that the insurer is exonerated of answering the said claim. Insofar as the other claims are concerned, it is no doubt true that the claimants have pleaded that they were all travelling with the goods and some of them as loaders. But however, the Tribunal has treated some claims of the deceased as workmen, loaders etc., We are of the view that the pleadings in the claim petitions are required to be taken note of while considering whether they were travelling with goods or as loaders. Indeed, if we take the pleadings with reference to the claim petitions, we find that some of them were loaders and some of them were travelling with goods. Hence, with reference to that distribution of compensation shall take place. Hence, the following order is passed:
(i) The insurer is liable to satisfy the claims in respect of 5 claims and it shall be distributed amongst the claimants with reference to the ruling of the Apex Court in the case of National Insurance Co. Ltd. Vs. Anjana Shyam and Others, .
(ii) The owner is liable to satisfy the claim in respect of the awards passed by the Tribunal, which is less than Rs. 10,000/-.
(iii) The insurer shall deposit the five of the highest awards. The balance of amount shall be recovered by the claimants from the owner of the vehicle in question in all the cases.
(iv) The statutory money, which is in deposit in this Court: in appeals filed by the insurer shall be returned to the insurer.
(v) All the appeals stand disposed of accordingly.