Allowed

D.v.Prasad v. Ravi

Kerala HC13 Aug 2010MACA/673/2010

Case brief

AI extract

What is this about?

In an appeal against awards for passenger injuries in vehicle overloading cases, the Court held that the insurer's liability extends to the sum of the highest 5 awards rather than restricting it to a pro-rated share based on permitted capacity, citing National Insurance Co. Ltd. v. Anjana Shyam. The owner bears costs for the excess claims due to inordinate delay.

What did the court decide?

Insurance company directed to pay balance of Rs. 40,000 comprising the sum of the highest five awards.

D.v.Prasad Vs Ravi — Motor Accident Claims | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.N.KRISHNAN

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FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932

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MACA.No. 673 of 2010()

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--------------------------------OPMV.641/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA

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APPELLANT(S): 2ND RESPONDENT IN OPMV

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-----------------------------------------------------------------

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D.V.PRASAD, MANAGER, SISUVIHAR NURSERY AND L.P.S., KOTTUKKAL, ANCHAL, KOLLAM.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT(S): CLAIMANT & RESPONDENTS 1 AND 3 IN OPMV

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-----------------------------------------------------------------------------------------------

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1. RAVI, S/O. KRISHNANKUTTY, VELLAYIKUDATHU HOUSE, MELE CHEMMANNUR, CHATHURANAGAPARA,, UDUMBANCHOLA, IDUKKI DISTRICT.

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2. SUDHEER.T.P. S/O. MISSIRIYA, THOTTIPARAMBIL HOUSE, POOPPARA.P.O., SANTHANPARA, IDUKKI DISTRICT.

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3. THE NATIONAL INSURANCE COMPANY LIMITED, UTHRADAM BUILDINGS, Q.S.ROAD, PULAMON.P.O., KOTTARAKARA,KOLLAM.

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4. THE DEPUTY TAHASILDAR (REVENUE RECOVERY) TALUK OFFICE, KOTTARAKKARA, KOLLAM DISTRICT.

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R2 BY ADVS.SRI.JESWIN P.VARGHESE R3 BY SMT.SARAH SALVY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, ALONG WITH WPC. NO.17401 OF 2010 & WPC . NO. 25604 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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M.N. KRISHNAN, J.

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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Dated this the 13^th day of August, 2010.

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The appeal and the writ petitions are filed against the awards of the Claims Tribunal, Thodupuzha in OP(MV) Nos.641/2002,642/2002 and 644/2002. The appeal and the writ petitions are preferred by the owner of the vehicle involved in the accident challenging his liability as well as exoneration of the insurance company from the liability. The brief facts necessary for the disposal of these matters are as follows:

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Altogether seven awards are passed by the Tribunal for a consolidated sum of Rs.49,000/=. It is the case of the claimants that while the claimants were travelling in a jeep, it overturned resulting in injuries to them. The insurance company would contend that the vehicle was only permitted to carry five passengers, whereas there were 8 passengers in the vehicle. So, the Tribunal held that since there is coverage only with respect to 5 passengers, the liability of

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: 2 :

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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the insurance company shall be restricted to 5 passengers and the balance is ordered to be paid by the owner.

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I am afraid that the said approach is erroneous in the light of the Supreme Court decision in National Insurance Co. Ltd. v. Anjana Shyam (2007 (3) KLT 993). It was a case where a bus with the capacity of 42 passengers were loaded with 90 passengers and had fallen into a river as a result of which, many persons died and many sustained injuries. A contention was raised by the insurance company that since the permitted load of the vehicle is only 42 and as there was overloading, the insurance company is to be exonerated from the liability, since it amounts to breach of policy conditions. But, the Hon'ble Supreme Court held that in such cases the methodology to be adopted is to restrict the liability of the insurance company to satisfy 42 awards in stead of 90 awards. How this 42 awards to be satisfied is specifically reiterated in para 16 of the judgment. It is stated therein:

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“illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted

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: 3 :

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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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, higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, 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 will be taken into account and it would be the sum total of those higher 42 awards.”

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So by virtue of this dictum, the insurance company is liable to satisfy 5 of the highest awards. Altogether there are 7 cases. The highest of the five awards are as follows:

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Rs.15,000/= in O.P.(MV)No.641/2002, Rs.9,000/= in O.P.(MV)No.627/2002, Rs.8,500/= in O.P.(MV)No.635/2002. Rs.4,000/= in O.P.(MV)No.644/2002 and Rs.3,500/= in O.P. (MV)No.634/2002. So, it will come to Rs.40,000/=. The total amount awarded is Rs.49,000/=. Since in 5 awards, I am

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: 4 :

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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informed that the amount has been paid by the insurance company, now what has to be done with respect to these type of cases are let the insurance company deposit the balance of Rs.40,000/= in these three cases with interest ordered by the Tribunal. The balance amount of Rs.9,000/= be deposited by the owner with interest in these cases and then apportion the amount according to the total and also pool out the amount from the deposit made by the owner and make the payment. It is made clear that since there is inordinate delay of 5 years in filing the appeal, the interest which the claimants are entitled for that period has to be exclusively borne out by the owner. Thus apportionment can be done by the owner filing an application before the Tribunal and the matter can be disposed of in the light of the principles laid down in National Insurance Co. Ltd. v. Anjana Shyam (2007 (3) KLT 993). I make it clear that there need not be any disturbance to the amount already paid and disbursed. It is also made clear that with respect to the amount already disbursed, further interest need not be

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: 5 :

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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calculated.

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Disposed of accordingly.

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M.N. KRISHNAN, JUDGE.

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: 6 :

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M.A.C.A.NO.673 OF 2010 W.P.(C)NO.17401 OF 2010 & W.P.(C)NO.25604 OF 2010

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M.N. KRISHNAN, J.

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A.S.NO.OF 2010

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............................................. 2^nd day of August, 2010.

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J U D G M E N T

D.v.Prasad v. Ravi

Case brief

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D.v.Prasad v. Ravi

Case brief

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