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Judgment
N. Ananda, J.—The appellant in MFA. Nos. 4305/2011, 4307/11 and 4308/2011 is the owner of insured vehicle involved in the accident (stage carriage bus). The appellants in MFA. No. 10962/2012 are the claimants MVC. No. 206/2010. They have filed MFA. No. 10962/2012 for enhancement of compensation and also to fix the liability on insurance company. The tribunal has exonerated the insurance company on the ground that at the time of accident the insured bus was carrying about 80 passengers against the permitted seating capacity of 33. Therefore, the owner is liable to pay compensation. I have heard Sri. A.N. Krishna Swamy, learned counsel for insurance company and Sri. Spoorthy Hegde, learned counsel for claimants.
As already stated, the tribunal has exonerated the insurance company on the ground that the insured has violated the permit condition allowing the insured vehicle to carry 80 passengers as against permitted capacity of 33. In my considered opinion, this cannot be a ground to exonerate the insurance company of its liability. The tribunal should have considered whether amongst the passengers, who were travelling in the insured vehicle at the time of accident had filed claim petitions in excess of the permitted seating capacity of insured vehicle. In other words, whether more than 33 claim petitions arising out of the same accident had been filed before the tribunal.
Even if more than 33 claim petitions arising out of the same accident had been filed, the tribunal should have followed the judgment of the Supreme Court reported in National Insurance Co. Ltd. Vs. Anjana Shyam and Others, (2007) ACJ 2129 : AIR 2007 SC 2870 : (2007) 4 CTC 593 : (2007) 10 JT 209 : (2008) 149 PLR 179 : (2007) 10 SCALE 116 : (2007) 7 SCC 445 : (2007) 9 SCR 78 : (2007) AIRSCW 5237 : (2007) 5 Supreme 856 and the judgment of the Supreme Court reported in United India Insurance Co. Ltd. Vs. K.M. Poonam and Others, (2011) ACJ 917 : (2011) 3 JT 149 : (2011) 162 PLR 477 : (2011) 2 RCR(Civil) 194 : (2011) 2 SCALE 568 : (2011) 2 SCR 1026 : (2011) 3 TAC 376 : (2011) AIRSCW 2802 . The tribunal was not justified in fastening the liability on the insured for the alleged breach of permit condition.
In view of this, the appeal filed by claimants for enhancement of compensation does not survive for the present. In the result, I pass the following:
ORDER
"I. MFA. No. 4305/2011, MFA. No. 4307/2011 and MFA. No. 4308/2011 filed by insured are accepted. The matters are remanded to the tribunal for reconsideration of the matter in accordance with law.
II. MFA. No. 10962/2012 filed by claimants in MVC. No. 206/2010 does not survive for consideration for the present, it is accordingly disposed.
III. After the fresh award is passed by the tribunal, the aggrieved parties are at liberty to challenge the same."
The amount deposited by the appellant in MFA. Nos. 4305/2011, 4307/2011 and 4308/2011 shall be refunded to the appellant (insured).