Decided on December 09,2003



J.B.Koshy, J. - (1.) All these appeals are filed against the common award passed by the Motor Accidents Claims Tribunal, Ottapalam in O.P. (MV) No. 35 of 1995 and connected cases. As a result of collision between autorickshaw bearing No. KL 9-1837 and K.S.R.T.C. bus bearing No. KLX 4870 on 29.9.1992 at about 9.30 a.m. the driver of the autorickshaw and another passenger died and some of the passengers in the autorickshaw sustained severe injuries. The Tribunal attributed 70 per cent negligence on the autorickshaw driver and 30 per cent on the driver of the K.S.R.T.C. bus. Dissatisfied with the finding of negligence and quantum of compensation 3 claimants filed M.F.A. Nos. 632, 665 and 674 of 1997. Since autorickshaw was insured, the insurance company was directed to pay compensation to the extent of 70 per cent awarded. The insurance company filed appeals in all the cases. We may first consider the contentions raised by the insurance company.
(2.) The coverage of the autorickshaw involved in accident by a valid insurance policy issued by them was admitted. The main contentions raised by the insurance company are: (1) The driver and owner of the autorickshaw were not made parties. In this case, the driver and owner are one and the same and he died in the accident. But, his legal representatives were not made parties. The insurance company is not liable to pay the compensation without the owner-insured, or his legal representatives in the party array. The question of indemnification of the insured by the insurance company will arise only if insured is a party to the proceedings and liability is cast on the insured. (2) The autorickshaw was overloaded and hence there is violation of policy conditions. Therefore, it is contended that there is no liability on the insurance company to pay compensation. (3) The driver of the autorickshaw is not at all negligent. The finding of negligence on the part of the autorickshaw driver to the extent of 70 per cent in any way is not correct. (4) The amount of compensation awarded is very high in all cases.
(3.) We will consider these contentions in seriatim. Learned counsel for the insurance company relied on the decision of the Full Bench of the Punjab and Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Bachan Singh, 1982 ACJ 211 (P&H). In that case the insured was fully exonerated from liability. The court held that when the owner was exonerated from liability, the liability cannot be cast on the insurance company. After considering the evidence in detail the Full Bench of Punjab and Haryana High Court held as follows: "To conclude, the answer to the meaningful question formulated at the very outset is rendered in the negative and it is held that insurer cannot be held liable under section 96 of the Act, where the insured himself stands exonerated of any such liability..." The above decision of the Full Bench was followed by a single Judge of the Orissa High Court in United India Insurance Co. Ltd. v. Krutibas Lenka, 1997 ACJ 611 (Orissa) and another single Bench of the Punjab and Haryana High Court in United India Fire & Genl. Ins. Co. Ltd. v. Gurmail Kaur, 1987 ACJ 556 (P&H).;

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