Judgment:
Devi Prasad Singh and Devendra Kumar Arora, JJ.
1. The present appeal under Section 173 of Motor Vehicles Act, 1988, has been preferred against the impugned award dated 14.9.2007 passed in Claim Petition No. 93/2006 by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 8, Sitapur.
2. According to the appellant's counsel, the claimant respondent Shrawan Kumar, aged about 44 years, was an employee in a country liquor shop in Shah Jalalpur and having earning income of Rs. 5,000 per month. On 8.2.2006, the claimant respondent Shrawan Kumar was going from Jalalpur to Kamlapur in a tempo No. UP-34-B-4618. At about 9 : 15 a.m. when the tempo reached near village Sultanpur Kamaicha, it suffered with accident because of rash and negligent driving of the vehicle. The claimant respondent Shrawan Kumar suffered grievous injuries and during the course of his treatment, he lodged F.I.R. on 26.3.2006. However, on account of grievous injuries, left hand of the claimant respondent Shrawan Kumar, was amputated by the doctors.
3. The defence taken by the tempo owner is that the accident occurred because of fog while the truck was coming from reverse direction. The defence taken with regard to fog etc., was not accepted and it has been held that the accident occurred because of rash and negligent driving of the tempo. During the course of trial, from the statement of witness it came to light that the tempo was having 15 passengers though, the permit was only for six passengers. The statement of one of the passengers Sri Anup Kumar, was relied upon by the Tribunal, who stated that he was sitting in the tempo when the accident occurred. The Tribunal held that since the vehicle was carrying more than sanctioned passengers, hence insurance company may not be held responsible to pay compensation. The liability to pay compensation, has been shifted to the owner appellant because of violation of permit.
4. While assailing the impugned award, the appellant's counsel submits that the liability of insurance company to pay the compensation to the six passengers with regard to whom the permit was granted, shall not extinguish. Even if it is assumed that there were fifteen passengers travelling in the tempo in question, the insurance company shall be liable to pay compensation to six passengers who could have been injured in the said accident.
5. Learned Counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in National Insurance Co. Ltd. v. Anjana Shyam and Ors. 2007 (4) TAC 48 : 2007 (3) ACCD 1537 (SC). Their lordships of Hon'ble Supreme Court while deciding the case of Anjana Shyam (supra), held that even if the number of passengers are higher than prescribed by permit, the insurance company shall not be exonerated from its liabilities. The insurance company shall be liable to pay compensation to the injured persons to the limit provided by the permit. In case the number of persons travelling in the insured vehicle, is more than what has been provided in the permit, then the insurance company shall be liable to pay compensation to such number of persons who are entitled to travel in the vehicle in descending order. For convenience, para 16 of the Anjana Shyam's case (supra) is reproduced as under :
16. 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 the 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 lump sum. 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.
6. In the present case, it has been brought to notice that apart from the appellant, only one person has been granted compensation. Keeping in view the principles laid down in Anjana Shyam's case (supra), it appears that the insurance company shall be liable to pay the compensation to the claimant respondent. The permit of the tempo was granted for six passengers and since the number of injured persons is only two, the burden shall be on the insurance company to pay the compensation in view of the judgment in the case of Anjana Shyam's case (supra). Though, the claimant respondent shall be entitled to compensation in terms of the Tribunal's award, the burden shall be of insurance company to pay compensation and not the tempo owner. Learned Counsel for the respondent No. 1 submits that already the amount under compensation has been deposited by the insurance company.
7. In view of the above, the appeal is allowed in part. The award of the Tribunal is modified in the manner discussed hereinabove. The respondent No. 1 shall be liable to pay compensation in terms of the award. In case, any amount is due and has not been paid till date, that shall be deposited in the Tribunal within two months from today. The Tribunal may proceed accordingly.
8. Subject to above, the award of the Tribunal, is confirmed.