JUDGMENT

Syed Bashir-Ud-Din, J.

1. By this common judgment all three appeals-120 of 1998 titled National Insurance Co. Ltd. v. Zaina 121 of 1998 titled National Insurance Co. Ltd. v. Zaina, 147 of 1998 titled National Insurance Co. v. Prem Piaree- are taken for disposal insofar as common questions of fact and law arise in all three appeals. The appeals are against awards of the Motor Accidents Claims Tribunal, Srinagar, dated 30.6.1998, 6.7.1998 and 24.8.98 respectively, passed in claims arising out of vehicular accident on 13.12.90 at Kargil-Srinagar Road, at Captain Mod (bend) at Zogila Pass. All ten occupants of the vehicle including the driver died in the accident. The vehicle and the occupants fell in deep ravine (nalla). Neither the vehicle nor the bodies could be retrieved.

2. In C.F.A. No. 120 of 1998 vide impugned award dated 30.6.98, claimants-respondents in Claim Petition No. 12 of 1991, have been awarded compensation of Rs. 1,68,000 with 6 per cent interest from institution of the claim petition (16.5.91) till date of decision and from 30.6.1998 at the rate of 12 per cent till payment is made and award satisfied.

3. In C.F.A. No. 121 of 1998, claimants/respondents vide impugned award dated 6.7.98, in Claim Petition No. 11 of 1991, have been awarded Rs. 3,68,000 with 6 per cent interest from the date of institution of the claim petition (16.5.1991) till date of decision and thereafter at the rate of 12 per cent till the award is satisfied.

4. In C.F.A. No. 147 of 1998, claimants in Claim Petition No. 13 of 1991 vide impugned award dated 24.8.1998, have been awarded compensation of Rs. 1,44,000 with 12 per cent interest from the date of institution of the claim petition on 16.5.91 till the award is satisfied.

5. These impugned awards have been challenged on grounds common to all the three appeals.

6. The appellant's counsel concedes that the other seven occupants of the taxi killed in the vehicular accident in question were awarded compensation in seven different claim petitions by Motor Accidents Claims Tribunal, Srinagar. Against those awards, statutory appeals were preferred in the High Court. Learned single Judge upheld the award in each claim petition by a common judgment. However, L.P.A. was filed by National Insurance Co. Ltd. against the judgment. This court again by a common judgment dated 28.12.1998 in L.P.A. No. 364 of 1997 to L.P.A. No. 370 of 1997 dismissed the appeals and upheld the judgment and order of learned single Judge and in terms confirmed the awards given by the Motor Accidents Claims Tribunal.

7. Mr. J.A. Kawoosa, learned counsel for the appellant, concedes that the factual matrix and legal issues raised in all the three appeals are covered by the above L.P.A. Bench judgment. He also concedes that no factual proposition or legal contention other than those encompassed and adjudicated upon by the L.P.A. Bench judgment in the above appeals is raised or arises in all these appeals. In such circumstances, it can be legitimately concluded that Division Bench judgment shall govern these three appeals as well insofar as the contentions raised and legal proposition formulated are covered and adjudicated by the above larger Bench judgment.

8. Mr. Kawoosa admits that there is no dispute whatsoever, regarding the factual aspects of the case and that he does not question the quantum of compensation awarded in any of the appeals and the mode and manner of arriving at the awarded compensation(s). He further submits that the statement of facts and narration of dates and other details are correctly reflected and figure in the impugned awards. What Mr. Kawoosa strenuously contends is that the liability of the insurance company is limited to five passengers and the driver and the vehicle was carrying double that load when it met with the fatal accident, in which all the ten passengers and the driver died. Therefore, the liability of the insurance company is confined to the five passengers and the driver and not unlimited as held by the Tribunal. There is no special contract between the insurance company and the insured to cover unlimited liability by the company. By carrying more passengers, there has been breach of policy and, therefore, the appellant insurance company cannot be foisted with unlimited liability. All these contentions were raised earlier before the learned single Bench in appeal under Section 173 of Motor Vehicles Act and, therefore, before the L.P.A. Bench against the judgment of learned single Judge. However, these contentions were turned down by the Bench. The L.P.A. Bench, to which I was a party, held that merely because the taxi car carried more passengers than permissible, would not absolve insurance company of liability, more so when the violation of terms of policy, in the facts and circumstances of the case could not be inferred. It was further observed that in any case, it was not so fundamental as to allow the insurance company to eschew liability altogether. The court in the context of wider scope on application of norms of meaningfully interpreting the provisions of Sections 147 and 149 of the Motor Vehicles Act, held that in the facts and circumstances of the case, claimants were entitled to claim compensation from the insurance company and that the Tribunal had rightly awarded the compensation.

9. In other 7 L.P.As. referred earlier hereto with lead case National Insurance Co. Ltd. v. Mohd. Ali L.P.A. No. 364 of 1997, this court by a Division Bench judgment observed:

...to deal with the contention that carrying of passengers more than covered by the insurance policy amounted to committing breach of terms of policy, therefore, the insurance company is not liable to pay compensation with respect to persons exceeding the number covered by the policy, this court takes the view that the appellant is not absolved from the responsibility altogether. Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC), meets the objections raised by the appellant. This accident amounts to 'accident to any one thereby covering each of the persons died in this accident'. No contrary decision was brought to our notice by the learned counsel for the appellant, therefore, the appellant would be responsible for payment of compensation for all the victims of accident. Whether the vehicle was being used in violation of the terms of policy and the provisions of Motor Vehicles Act, we may say that the Motor Vehicles Act, 1988 is a comprehensive legislation to replace the existing Act of 1939. It does away with the limited liability of insurance company with respect to insurance claims under Section 147(2)(a). In case insurance company is permitted to raise defence of limited liability on the basis of terms of insurance policy, the object of Section 147 would stand frustrated. Moreover, the parties cannot stipulate which runs counter to the provisions of the statutory enactment. We find that factually accident in this case took place on 13.12.1990 and the new Motor Vehicles Act, 1988, came into force from 1.7.89 by SO-368 (E) dated 22.5.1989. Therefore, stipulation contrary to the statutory provisions and contention to that effect is hardly acceptable. Even otherwise, alleged breach of terms of policy by the insured may be an offence under other provisions of this Act, but surely that does not fall under Section 149(2)(a) of the Act by carrying persons more than covered by the insurance policy, which has neither been proved nor stipulation established as per single Judge.

10. In Madras Motor & Genl. Ins. Co. Ltd. v. Nanjamma 1977 ACJ 241 (Kar-nataka), a Division Bench observed that so long taxi car was being used for carrying passengers merely because there was overloading, it cannot be said that the car was used for a different purpose, in breach of terms of the policy. Similarly, in Kesavan Nair v. State Insurance Officer 1971 ACJ 219 (Kerala), the High Court observed that merely because offending vehicle, a stage carriage permit holder, was carrying passengers in breach of stage carriage permit, the vehicle cannot be said to have been used for the purpose other than the one for which permit was issued so long it was carrying passengers on hire or reward.

11. In B. V. Nagaraju v. Oriental Insurance Co. Ltd. 1996 ACJ 1178 (SC), the Supreme Court observed that carrying of passengers in goods vehicle more than the number permitted in terms of the policy, is not a breach so fundamental as to afford ground for eschewing liability to pay the compensation altogether.

12. The contention of Mr. Kawoosa, that in the special leave petition preferred under Article 136 of the Constitution of India against the above L.P.A. Bench judgment dated 28.12.1998, Supreme Court while declining to interfere with the Bench decision of this court had observed that the questions of law raised in the Special Leave Petition before the Supreme Court needed closer look and, therefore, the legal issues may be re-examined in view of the observation.

13. I am afraid that this contention of Mr. Kawoosa cannot be upheld for the reason that insofar as this court is concerned, the law laid down by L.P.A. Bench with one the same factual matrix/premises in all ten cases is binding on this Bench sitting singly. These three cases as also the other connected cases referred also in the above L.P.A. Bench are governed by the decision of this court. After all same set of facts arising out of the same transaction and circumstances, cannot be decided differently. It is not open to this court to interpret law differently in respect of different claimants when occurrence is same and all the persons died in the same occurrence of vehicular accident. Court cannot apply differential legal yardsticks as far as the claimants of the compensation in these cases are concerned. Besides, as a precedent, the law laid down by the above L.P.A. Bench cannot be bypassed. The observations of the learned Judges of the Apex Court while disposing of SLP (Civil) Nos. 6297-6303 of 1999 on 4.5.1999 that:

...So far as the question of law is concerned, prima facie, learned counsel for the petitioner was right when he submitted that it requires a closer consideration. But on the facts of this case we are not inclined to entertain this contention. Keeping the question of law open, therefore, this special leave petition is dismissed.

obviously convey that the questions of law raised before the Apex Court in the special leave to appeal in the case may be considered by Supreme Court of India in some other case, but not in the facts and circumstances of this case, where the Apex Court declined to entertain the contention.

14. In result, for what is stated above, all the three appeals are dismissed.