DIVISIONAL MANAGER Vs. CHANDRASEKARAN

JUDGEMENT

(1.) THESE Civil Miscellaneous Appeals are filed by the Insurance Company against the award and decree dated 17.6.2003 made in MCOP No.37 of 1999, against the award and decree dated 21.8.2003 made in MCOP No.534 of 2003, against the common award and decree dated 21.8.2003 made in MCOP Nos.536 and 539 of 2003, against the common award and decree dated 17.6.2003 made in MCOP Nos.368 and 369 of 1997, against the award and decree dated 16.6.2003 made in MCOP No.85 of 1998, against the common award and decree dated 17.6.2003 made in MCOP Nos.197 of 1998, 215 of 1998 and 227 of 1998, against the award and decree dated 17.6.2003 made in MCOP No.228 of 1998 and against the award and decree dated 21.8.2003 made in MCOP No.540 of 2003, on the file of the Motor Accident Claims Tribunal, (III Additional District Judge), Pondicherry.

(2.) BACKGROUND facts in a nutshell are as follows: - These appeals are arising out of a common accident. There were 81 passengers travelling in a bus bearing Registration No.TAU 9515 belonging to one Prabhu, who is one of the respondents in all these appeals, from Kodaikanal Hill to Palani on 02.05.1997 at about 12.30 p.m. When the bus was going between B.L. Shed and North Kavounchi, the driver drove the bus in a rash and negligent manner. At that time, a vehicle came from the opposite direction towards Kodaikanal and in order to give way for that vehicle, the driver moved the bus towards left side and the earth near the front wheel caved in, resulting in the bus getting tilted and falling into a deep trench. Due to the accident, some of the passengers were killed and some of them sustained grievous injuries. The claimants in the respective claim petitions claimed compensation. The said bus was insured with the appellant / Insurance Company, who resisted the claims. On pleadings, the Tribunal framed the following issues in all the cases: -

(3.) HEARD the counsel. The main argument of the counsel for the appellant is that there is no proof to show that 81 passengers had travelled in the bus. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that these persons had travelled in the bus which is based on the Investigation Report, which is an exhibit in all the cases. As per the said Investigation Report, 81 persons had travelled, out of which 32 persons died and 49 persons injured. The finding is based on valid materials and evidence. The other argument of the counsel is that the Insurance Company is liable to pay compensation only for the permissible limit of 57+2 passengers because of the overloading of the bus beyond the prescribed limit and he relied on the Supreme Court judgment in the case of National Insurance Co. Ltd. v. Anjana Shyam and others, 2007 ACJ 2129. In that case, a bus owned by the Tehsil Cooperative Union and insured with the Insurance Company, met with an accident on 4.3.1996. The said vehicle had a carrying capacity of 42 passengers, plus a driver and a conductor and in terms of Section 147(1)(b)(ii) of the Motor Vehicles Act, was insured for 42 passengers. On the day of the accident, it was indicated that the bus was overloaded and there were at least 90 passengers. Due to the accident, 26 persons including the one who was driving the vehicle died and 63 persons were injured. The claims were made and the same were resisted by the Insurance Company. There, the Tribunal held that the Insurance Company is liable for paying the amounts covered by all the awards exceeding the 42 persons covered by the insurance. Aggrieved, the Insurance company filed 38 appeals challenging the awards. The High Court held that the Insurance Company is liable to pay the compensation as awarded by the Tribunal since it could not also question the quantum of compensation awarded. Aggrieved, the Insurance Company filed an appeal and took up the matter to the Supreme Court and the Supreme Court held as follows: -