Judgment:
Kuldip Singh, J.
1. The insurer of vehicle No. HP-01-1879 has come in appeal against award dated 16.10.2004 passed by learned Motor Accident Claims Tribunal, Kinnaur Division at Rampur Bushahr in MAC Petition No. 34 of 2003.
2. The respondents No. 1 to 6 widow, daughter, son and parents had filed claim petition claiming Rs. 10,00,000/- compensation on account of death of Yogi Chand due to injuries sustained by him in an accident on 29.10.2002 involving vehicle bearing Whether the reporters of the local papers may be allowed to see the Judgment? registration No. HP-01-1879. The further case of respondents No. 1 to 5 is that Yogi Chand boarded vehicle No. HP-01-1879, which was owned by respondent No. 6 at the relevant time. The accident was caused due to rash and negligent driving of the driver as a result of which the vehicle went out off National Highway-22 near Purwani Jhula at about 11.00 a.m. Yogi Chand received fatal injuries in the accident. The respondents No. 1 to 5 were dependants on Yogi Chand aged 29 years, who was earning Rs. 10,000/- per month. The case of respondents No. 1 to 5 is that appellant was the insurer of the vehicle at the relevant time and, therefore, appellant was liable to indemnify respondent No. 6.
3. The petition was contested by respondent No. 6, he admitted the ownership of the vehicle involved in the accident, but he denied rash and negligent driving on the part of the driver at the time of accident. According to respondent No. 6, accident took place due to sudden mechanical breakdown of the vehicle. The driver of the vehicle also died in the accident. The income, occupation and the age of the deceased were denied. It was also denied that respondents No. 1 to 6 were dependants on Yogi Chand. The vehicle was insured with the appellant, compensation if any, is to be paid by the appellant.
4. The appellant also contested the petition and had submitted that respondent No. 1 had been plying the vehicle without valid RC-cum-fitness certificate. The driver of the vehicle was not holding valid and effective driving licence at the time of accident. The respondent No. 6 contravened the terms and conditions of the policy. At the time of accident the vehicle was carrying 17 persons including the driver as against maximum sitting capacity of 14. In these circumstances, insurer is not liable to indemnify respondent No. 6- owner. The insurance of the vehicle was not denied. The learned Tribunal had framed the following issues:
1. Whether deceased Yogi Chand had died due to rash and negligent driving of vehicle having registration No. HP-01-1879 (Maxi cab) as alleged? OPP
2. If issue No. 1 is proved in the affirmative, to what amount of compensation and against whom are the petitioners entitled to? OPP.
3. Whether the accident took place due to mechanical defect? OPR-1.
4. Whether the vehicle was duly insured with the Insurance Company at the time of the accident, as alleged? OPR-1.
5. Whether the present petition is not maintainable in its present form? OPR-2.
6. Whether the driver of the vehicle in question was not possessing a valid registration-cum-fitness certificate at the time of the accident, as alleged? OPR-2.
7. Whether the driver of the vehicle in question was not possessing a valid and effective driving licence at the time of the accident, as alleged? OPR-2.
8. Relief.
The issues No. 1, 4 were answered in affirmative, issues No. 3, 5, 6 and 7 were answered in negative and under issues No. 2 and 8 respondents No. 1 to 6 were held entitled to Rs. 3,02,400/- compensation against respondent No. 6 and appellant, hence this appeal by the insurer. The respondents have accepted the award.
5. I have heard learned Counsel for the parties and have also gone through the record. The judgement dated 19.12.2008 passed in FAO Nos. 80, 127, 417, 419 of 2004 and 162 of 2006, by this Court was brought to my notice. In judgement dated 19.12.2008, the same accident of the vehicle was involved, but the claimants were different. The learned Counsel for the appellant has confined her submissions on the violation of insurance policy. According to her at the time of accident 17 persons were sitting in the vehicle, and, therefore, appellant is not liable to indemnify respondent No. 6 owner of ill-fated vehicle.
6. PW 1 Raj Devi has stated that her husband died on 29.10.2002 in an accident involving maxi cab HP-01-1879. PW 2 Subhash Negi has stated about the income of the deceased and for the purpose of appeal his statement is not relevant. PW 3 Diwan Chand has proved the death certificate of the deceased and for the purpose of appeal his statement is also not relevant. The counsel for respondent No. 6 before the learned Tribunal had tendered in evidence RC Ex. R-1, insurance policy Ex. R-2, driving licence Ex. R- 3. RW 1 R.K. Sharma, Branch Manager, National Insurance Company has stated that vehicle No. HP-01-1879 was owned by respondent No. 6, this vehicle met with an accident on 29.10.2002. There were 17 persons including driver in this vehicle at the time of accident. As per RC of the vehicle, the maximum carriage capacity of vehicle was 14 including the driver. Copy of insurance policy is Ex. RW 1/B.
7. The statement of RW 1 R.K. Sharma makes it clear that appellant is not imputing the cause of accident to the overloading of the vehicle at the time of accident. The stand of the appellant is that respondent No. 6 had contravened the terms and conditions of insurance policy, therefore, appellant is not liable to indemnify respondent No. 6. As per the case of the appellant, the permitted capacity of the vehicle involved in the accident was 14 including the driver, but the vehicle was carrying 17 persons including the driver at the time of its accident. Thus according to appellant, three persons were in excess in the vehicle at the time of accident. In B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan : AIR1996SC2054 , nine persons were sitting in the vehicle against six persons permitted by the policy. The Supreme Court in that case has held as follows:
It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying.... Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor.
The overloading of the vehicle as alleged by the insurance company has not been proved to be fundamental cause of accident. Therefore, appellant cannot escape its liability. In National Insurance Co. Ltd. v. Reena Devi and Ors. , the then Hon'ble the Chief Justice of this Court has held as follows:
It is, therefore, manifestly clear that the overloading of a bus even though it might be a breach of a condition of the registration certificate or the route permit, yet cannot be made the basis of a defence by an insurer because such a breach does not find any mention in either Clause (a) or Clause (b) of Sub-section (2) of Section 149 of the Act. By now, through a catena of pronouncements of law by various judgements of the Apex Court it has conclusively been established that an insurer is ent1itled to avoid its liability to pay only if its defences fall within the ambit of Sub-section (2) of Section 149 of the Act and that an insurer, otherwise than by Section 170 of the Act, cannot be permitted to traverse beyond these limited defences available to it under Section 149 (2) of the Act.
8. In view of National Insurance Co. Ltd. v. Reena Devi and Ors. (supra) , the appellant is not entitled to plead and avoid its liability to indemnify respondent No. 6 owner of the vehicle on the ground that at the time of the accident the vehicle was overloaded with passengers. The contentions raised in the present case are fully covered by the judgement dated 19.12.2008 passed in FAO Nos. 80, 127, 417, 419 of 2004 and 162 of 2006. Thus taken from any angle, the appellant has failed to make out any case for interference.
9. No other point was urged.
10. The result of above discussion the appeal fails and is accordingly dismissed with no order as to costs.