AJAY KUMAR SINGH vs UNITED INDIA INSURANCE CO.LTD

THIS is a complaint under Section 17(a)(i) of the Consumer Protection Act, 1986 (for short the ''Act'') to claim the amount of Rs. 2,00,000/- with interest for the deficiency in service in treating the own damage claim as ''No claim'' by the opposite party vide letter dated 21.11.1994 on the ground that in terms of the policy of insurance under the head "General Exceptions" the Insurance Company shall not be liable under the policy in respect of; any accident, loss, damage and/or liability caused, sustained or incurred whilst the motor vehicle is being used otherwise than in accordance with the limitations as to use. The Motor Vehicles Act provides that the vehicle shall be used only for carrying the permitted number of passengers which, in the present case was 52. While, at the time of occurrence of the accident, the vehicle was carrying 78 passengers, it was clearly a case of use of vehicle than the use permitted by the Motor Vehicles Act.

ORIGINALLY, the complaint was filed before the District Forum at Shahdol on 25.5.1993. The District Forum vide order dated 3.7.1995 passed in Case No. 43/1993 on the averment that the State Carriage Bus No. N.B.A. 6525 owned by the petitioner was badly damaged in the accident taken place on 19.3.1991 near Railway crossing between Pali to Shahdol, of which a First Information Report was lodged and an own damage claim with the Insurance Company and in the said accident 27 passengers including the driver and conductor died and after two days two more passengers seriously injured died and 49 persons were injured and admitted in nearby hospitals, held that the case involves complex issues of facts and interpretation of law and rights and obligations of parties and for the adjudication of such dispute complainant should knock the doors of the Civil Court. Against the said order the Appeal No. 610/95 was filed. This Commission vide order dated 12.9.1997 took the matter into suo motu revision and set aside the order being without jurisdiction in view of the decision of the National Commission in Premier Automobiles v. Dr. Ram Chandran, I (1994) CPJ 88 (NC), as the District Forum had no pecuniary jurisdiction to entertain and decide the complaint as the valuation of the claim exceeded Rs. 1,00,000/-, and ordered to register the complaint as the original case before this Commission.

The complaint was resisted mainly on the ground that under the terms of the policy of the insurance under the head "General Exceptions" the Insurance Company shall not be liable under the policy in respect of any accident, loss, damage and/or liability caused, sustained or incurred whilst the motor vehicle is being used otherwise than in accordance with the limitations as to use.

MR. Mohan Chouksey and Ku. Chitra Sharma, learned Counsel for the complainant and MR. G.K. Shrivastava and MR. Pankaj Khare, learned Counsel for the opposite party heard. The main ground of treating the claim as no claim is carrying of passengers beyond its seating capacity, that is over-loading of the bus, therefore, in terms of the policy "General Exceptions" the Insurance Company treated the claim as no claim. It is not the case of the Insurance Company that the over-loaded passengers were the cause of the accident. On the other hand, the accident occurred while the bus was crossing the railway track and from coming shuttle, the bus dashed and accident occurred, the bus was broken in two pieces. The legal representatives of the deceased persons and the injured persons have filed the claim petitions before the Motor Accident Claims Tribunal at Shahdol to claim the compensation for the death or for the injuries suffered. When the cause of accident was not the over-loaded passengers nor the cause of accident can be attributed to the excess passengers carried in the bus, in our opinion, the Insurance Company was not right in treating the claim as "no claim" and was deficient in service as is the view of the National Commission in a recent decision in case of United India Insurance Co. Ltd. v. Surjit Singh Asai, III (1999) CPJ 79 (NC)=(2000) NCJ 113, wherein in para 2 the National Commission has observed thus : "At the time of the accident actually 42, if not 43 passengers were travelling. Therefore, the Insurance Company was right in repudiating the claim of the insured. It has been brought to our notice that the accident took place because the bus while travelling had to cross a bailey bridge which collapsed, it is nobody''s case that the bridge collapsed because of excess weight carried by the bus. The cause of the accident is not attributable to excess passengers carried by the bus. Under these circumstances, we are of the view that the Insurance Company was not right in repudiating the claim of the insured merely because the bus was carrying excess passengers when the cause of the accident was totally unrelated to carrying of excess passengers. For example, if the bus was struck by lightning and destroyed could the Insurance Company refuse to pay on the ground of over-loading. Surely not, the Insurance Company could not refuse to pay on the ground of over-loading when it did not have any connection at all with collapsing of the bridge."

COMING to quantum the opposite party appointed Surveyor Mr. S.K. Khanna, who vide his report dated 26.4.1991 assessed the net loss on the repair basis around Rs. 1,30,000/-. The complainant insisted for the full amount as it was a total loss. At page 5 in the Surveyor report, it is stated that the insured has given his consent for Rs. 1,60,000/- on the total loss basis and the same is most economical for the insurer as the salvage will be around Rs. 45,000/-. In view of the report of the Surveyor and the fact that the complainant agreed to accept the total loss of Rs. 1,60,000/-, it would be just and proper to direct the Insurance Company to pay the amount after deduction of Rs. 45,000/- salvage value with interest at the rate of 12 per cent per annum in view of the decision of the Supreme Court in United India Insurance Co. Ltd. v. MKJ Corporation, III (1996) CPJ 8 (SC), for a period of 5 years only as we are not granting interest for the total period spent in the litigation as the complainant approached the District Forum, which had no pecuniary jurisdiction to entertain the complaint. The order of dismissal of the complaint was set aside in exercise of the suo motu power, the complaint registered as original case has seen the light of the day today. The delay so caused cannot be attributed to the Insurance Company, therefore, it would be unjust to burden the Insurance Company to direct the payment of interest for the total period right from the date of the accident till the date of payment, to say so we rely on the decision in case of Oriental Fire and General Insurance Co. Ltd. v. Ramsingh & Ors., 1995 JLJ 342. Therefore, we direct the opposite party to make the payment of Rs. 1,15,000/- with its interest as directed by us within a period of two months from the date of receipt of certified copy of this order failing which the interest shall be payable at the rate of 15 per cent per annum from the date of this order. In the result, the complaint is allowed accordingly with costs of the proceedings which are fixed at Rs. 2,500/-. A copy of this order be conveyed to the parties. Complaint allowed with costs.