19.The petitioners claims that the respondents who are the owner and insurer of the vehicle are liable to pay compensation. The owner/first respondent remained exparte. However, the learned counsel appearing for the appellant-Insurance Company contends that the Auto in which the petitioners travelled was permitted to carry only 3+1 persons as per the terms and conditions of the Insurance Policy, but, it carried 5 +1 persons at the time of accident, which will clearly amount to violation of the terms and conditions of the insurance policy as well as the permit. Since the first respondent owner permitted the driver of the auto to commit violation as stated above, the appellant-Insurance Company pleads that they are to be exonerated and they are not liable to pay any compensation. It is true that the vehicle involved in the accident carried passengers in more numbers, than permitted under the terms and conditions of the permit as well as insurance policy and therefore the same will clearly amount to violation of policy conditions. However, as the policy coverage was in force, the insurer cannot escape from its liability to pay compensation to the petitioners/claimants who are the third parties. In support of the same, the ruling of the Apex Court reported in 2011(1) TN MAG 441(SC) in UNITED INDIA INSURANCE CO. LTD., Vs. K.M. POONAM AND OTHERS, is relied upon. In the said ruling, it is 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 validity 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 br 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 of their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amount payable in respect of the persons covered by
