1. By Court.— Kangali Das, a resident of Sadang Hating, within Keonjhar district in Orissa State was employed as a skilled miner in Orissa Minieral Development Company Limited at Thakurain. He was 30 years old and was drawing salary of Rs. 2500/- per month.
2. On 23.9.1993 he had taken voluntary retirement and had started business of readymade garments at Chaibasa.
3. On 4.11.1993 he was travelling on Bus (BRS-8567) from Jhinkapani to Chaibasa on its roof. At Jhinkpani Railway crossing driver of the bus negligently stopped it applying sudden break and as a result of jerk, he was thrown from the roof, sustained grievous injuries on head and other parts of the body and became senseless. He was admitted at Sadar Hospital at Chaibasa where he died within one hour.
4. His widow, minor son and daughters filed Compensation Case No. 4 of 1994 for compensation under the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’).
5. Both owner as well as insurer of the bus contested the case. The insurer contended that the bus was overcrowded and the deceased had climbed on its roof top of his own. In utter negligence knowing fully well that the road condition was not worth sitting on the roof top of the bus which is meant for carrying luggages of the passengers, the Insurance Company was not liable to indemnify the owner on account of gross violation of the terms and conditions of the Insurance policy.
6. It was established that the deceased boarded the bus and occupied his place on its roof top. The accident had taken place due to gross negligence on the part of driver of the bus.
7. The tribunal assessed annual dependency at Rs. 24,000/- and applied 18 multiplier thereto and accordingly calculated a sum of Rs. 4,50,000/- payable as compensation to the claimants.
8. A sum of Rs. 25,000/- was already paid to the claimants by the Insurance Company by way of interim award and the balance amount of Rs. 4,25,000/- was directed to be paid by owner of the bus.
9. It is well settled that insurer can avail only such defence as are permissible under sub-section (2) of section 149 of the Act, unless the policy itself permits the insurer to urge the defence to escape its liability to indemnify the owner. Under Section 149 the grounds specified under section 149(2) of the Act does not include a breach of any specified condition of the policy on account of either travelling by a passenger on the roof top of the vehicle or travelling by persons more in number than the number of passengers for which extra premium was paid. Further even if the deceased, who was travelling on the roof top of the bus was not a bona-fide passenger, the insurer under the provisions of Section 147 of the Act cannot claim exclusion of such gratuituous passengers, the insurance policy covering 3rd party risk.
10. In the present case, in the insurance policy, Ext. A., no specific term of condition was provided so as to exclude the liability of the insurer to indemnify the owner either for allowing more than 52 passengers in the bus or for allowing them to travel on roof of the bus.
11. In the aforesaid circumstance, the insurer cannot escape the liability to pay compensation to the claimants on behalf of owner of the bus. Accordingly, the impugned judgment and award is modified to the extent that instead of owner of the vehicle, the insurer is liable to pay the aforesaid amount of compensation.
12. This appeal is disposed of accordingly.