Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 391 (JK)

Oriental Insurance Co. Ltd. v. Rani Bi

2016-07-22

R.SUDHAKAR

body2016
JUDGMENT: R. Sudhakar, J. 1. CIMA Nos. 190/2014, 191/2014, 192/2014, 200/2014, 187/2014, 208/2014, 2011/2014, 209/2014, 2012/2014, 194/2014, 213/2014, 207/2014, 210/2014, 218/2014, 201/2014, 188/2014, 199/2014, 219/2014, 306/2014, 214/2014, 198/2014 & 217/2014 are admitted and with the consent of counsel for the parties are taken up for hearing. Since all these appeals have arisen from a common accident, therefore, same are taken up together and are being decided by this common order. 2. In this batch of appeals, claimants are before this Court. Owner of the vehicle/bus, which fell into a gorge and caused injuries and deaths of many passengers, was set ex-parte before the Tribunal, therefore, there is no justification to await appearance on his behalf, since he is not contesting the matter on merits. 3. On the fateful day of 21.09.2006, bus bearing registration No. JK02G/1495, which was admittedly over loaded, carrying the passengers more than the permissible limit, met with an accident due to negligence of the driver of the bus and the conductor. 4. Finding of the Tribunal in respect of negligence on part of the driver is not seriously disputed. The only plea taken by the appellant-insurance Company is that the Tribunal in this case after accepting that the driver and conductor were negligent on account of overloading the vehicle, the Insurance Company should have been discharged of its liability because of breach of condition of the insurance policy. On that premise, it is stated that, at best the Tribunal should have ordered that claimants should first be paid by the insurance Company with a right to recover the amount from the owner of the vehicle. 5. Reliance has been placed on a judgment of Hon'ble the Supreme Court rendered in United India Insurance Co. Ltd. v. K.M. Poonam & Ors., 2011 ACJ 917 , wherein it has been held that liability of the insurer is confined to the number of persons covered by the insurance policy and for others pay and recover from owner of vehicle. The relevant portion of the judgment is reproduced hereunder:- "24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. The relevant portion of the judgment is reproduced hereunder:- "24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 25. As mentioned hereinbefore, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, travelling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal. 26. 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). 26. 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. 27. In other words, the Appellant Insurance Company shall deposit with the Tribunal the total amount of the amounts awarded in favour of the awardees within two months from the date of this order and the same is to be utilized to satisfy the claims of those claimants not covered by the Insurance Policy along with the persons so covered. The Insurance Company will be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution. For the aforesaid purpose the total amount of the six Awards which are the highest shall be construed as the liability of the Insurance Company. After deducting the said amount from the total amount of all the Awards deposited in terms of this order, the Insurance Company will be entitled to recover the balance amount from the owner of the vehicle as if it is an amount decreed by the Tribunal in favour of the Insurance Company. After deducting the said amount from the total amount of all the Awards deposited in terms of this order, the Insurance Company will be entitled to recover the balance amount from the owner of the vehicle as if it is an amount decreed by the Tribunal in favour of the Insurance Company. The Insurance Company will not be required to file a separate suit in this regard in order to recover the amounts paid in excess of its liability from the owner of the vehicle." 6. On this limited plea of pay and recover, the appeals are canvassed. There is no dispute that the vehicle was overloaded and the accident was because of negligence of the driver and conductor. The owner, therefore, is liable as there is a breach of condition of the policy. In view of the decision of the Supreme Court, the Insurance Company can sustain the said plea. They will, however, be entitled to recover from the owner of the vehicle after settling the claims as pleaded. In such view of the matter, all the appeals are allowed to the extent that the insurance company's liability stands extinguished. The Insurance Company is at liberty to recover the amount of the award from the owner of the vehicle after settling the claims in all these cases.