Ansumoy Pati vs NEW INDIA ASSURANCE COMPANY LTD.

PRESENT revision petition has been filed by the Petitioner/Complainant under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') challenging order dated 13.6.2006 passed State Consumer Disputes Redressal Commission, Orissa, Cuttack (for short, ''State Commission'') in Appeal No. 26 of 1997. Brief facts are that petitioner filed a consumer complaint on the allegations that he is owner of a truck which has been insured with the Respondent/O.P. and insurance policy was valid up to 26.7.1995. On 30.6.1995 the vehicle in question met with an accident with a bus. Due to head on collusion, a person sitting in the back side of the truck (Dalla) was dead and drivers of both the vehicles were injured and removed to hospital. FIR to this effect was lodged. The petitioner submitted insurance claim with the respondent which vide letter dated 5.1.1996 intimated the petitioner that "since your vehicle was carrying persons, other than those covered under policy, at the material time of accident which is a clear cut violation of policy condition (Limitation as to use) we disown our liability and treated the claim as ''No CLAIM''." It is further averred that Rule 69(2) of OMV Rules, 1993 prescribes chat including driver persons are allowed to be carried on any goods carriage i.e. a driver, a helper and four labourers but not any fare paying passenger/passengers. To add to this, conditions issued for public carrier/private carrier as per permit condition issued by the R.T.O. dated 18.8.1993 wherein Clause 12 also reflects the same, that is, 4 Majdoors may be carried for loading and unloading the goods in the vehicle.

IT is further stated that the vehicle was not carrying persons other than those covered under the policy. Accordingly, petitioner filed a complaint claiming Rs. 4,20,660.77 towards amount spent for repairs, mental agony and interest. Opposing the complaint, respondent in its written statement has stated that the case of the petitioner was considered and after thorough investigation into the matter, it came to light that petitioner has violated the terms of the policy inasmuch as he exceeded the limits of use as per the policy conditions. During investigation, it was found that at least 4 persons, namely, (1) Biranchi Narayan Singh (2) Panchu Behera (3) Tikina Behera and Smt. Kumari Behara were travelling in the "Dala" of the Truck at the relevant time. Besides the aforesaid 4 persons, it is also came to light that one Susema Behera and others were also travelling in the "Dalla" of the Truck. Singh, innumerable persons were being carried in the Truck as passengers, so there has been a clear violation of the terms and conditions of the policy and therefore the claim was rightly repudiated.

DISTRICT Consumer Disputes Redressal Forum Cuttack (for short. District Forum''); vide order dated 8.10.1996 allowed the complaint in part and directed the respondent to pay Rs. 1,96,958.84 and Rs. 5,000 to the petitioner within 60 days of receipt of its order.

AGGRIEVED by the order of District Forum, respondent filed an appeal before the State Commission, which vide impugned order allowed the appeal and dismissed the complaint. Hence, this revision.

WE have heard the learned Counsel for the parties and have gone through the brief written notes filed by the Counsel for the petitioner.

IT has been contended by the learned Counsel for the petitioner that as per Motor Vehicle Rules, 1988, six persons including driver are allowed to be carried out on any goods carrier, i.e., a driver, a helper and four labourers. Thus, there has been no violation of any law. It is further contended that rejection of claim without assigning any reason specifically not mentioning as to which condition of policy has been violated is against the principles of natural justice In support, learned Counsel, for petitioner has relied upon the following judgments: (i) Skandia Insurance Company Ltd. v. Koklaben Chandravadan and Others, : I (1987) ACC 413 (SC) : AIR 1987 SC 1184 and

(ii) B.V. Nagraraju v. M/s. Oriental Insurance Company Ltd., Divisional Officer, Hassan, : I (1997) ACC 123 (SC) : II (1996) CPJ 28 (SC) : AIR 1996 SC 2054.

ON the other hand, it has been contended by learned Counsel for the respondent that admittedly passengers were travelling in the goods vehicle which has met with an accident. Thus, there is a violation of the terms and conditions the insurance policy. Under these circumstances, respondent is not liable pay any amount. Learned Counsel for respondent in support, has relied upon the following judgments: (i) Thokchom Ongbi Sangeeta (Smt) v. Oriental Insurance Company Ltd. and Others, : IV (2007) ACC 377 (SC) : IX (2007) SLT 193 : (2007) 11 Supreme Court Cases 750 and

(ii) Oriental Insurance Company Ltd. v. Brij Mohan and Others, : IX (2007) SLT 281 : IV (2007) ACC 254 (SC) : (2007) 7 Supreme Court Cases 56.

STATE Commission in its impugned order observed: At the time of accident the vehicle was empty, as admitted the respondent in his claim form. There were five persons, who were travelling in the truck at the time of accident. They were dry fish businessmen. Trinath Behera is one of them, who died at the spot. There were four other passengers, namely, Panchu Behera, Tikan Behera, Kumari Behera and Biranchi Narayan Singh. Soon after the accident, they were shifted to Badachana Primary Health Centre, where they were treated and discharged. The investigator also examined Panchu Behera, Tikan Behera and Biranchi Narayan Singh. All of them stated before him that they along with the deceased -Trinath Behera and Kumari Behera were travelling as passengers in the ''Dalla'' of the truck at the material time from Panikoili to Chandikhol. Kumari Behera could not be examined because she died, in another accident. The driver of the vehicle succumbed to injury at Badachana P.H.C. One Niranjan Behera in his statement recorded on 9.12.1995 stated that he is the son of the deceased -Trinath Behera and on 30.6.1995 he (Trinath Behera) along with his co -villagers, namely, Panchu Behera, Tikan Behera, Kumari Behera and Biranchi Narayan were coming in the truck. From the above, we are inclined to hold that at the time of accident, in the ill -fated truck, five dry fish businessmen including the deceased -Trinath Behera were travelling. Admittedly, the vehicle was a goods vehicle. It was not a vehicle which was used for systematic carrying of passengers on payment of fare. Those five persons were obviously travelling in the goods vehicle either paying fare or for reward or even gratuitously. The vehicle was not authorised to carry them. It was contrary to the conditions of certificate of insurance and Section 147 of the Motor Vehicles Act, 1988. In view of the aforesaid, no liability can be fastened on the appellant. The impugned order therefore cannot be sustained in law.

In the result, the impugned order is set aside. The complaint filed by the respondent stands dismissed and this appeal is allowed. No costs.

The judgments cited by learned Counsel for petitioner are not applicable to the facts of the present case.

IN Thokchom Ongbi Sangeeta (Smt.) (supra), the Insurance Company assailed the judgment of Gauhati High Court on the ground that the vehicle involved in the accident is a truck which is a goods vehicle and, therefore, the Insurance Company is not liable to pay compensation. The Apex Court in this regard, observed: 5. The question of liability of the insurer with regard to the goods carrier has been dealt with by this Court in Oriental Insurance Company Ltd. v. Devireddy Konda Reddy. In the said case the provisions of Section 95(1) of the Motor Vehicles Act, 1939 (hereinafter referred to as the old "Act") as well as Section 147(1) of the Act were dealt with.

The High Court by the impugned judgment, accepted the plea and held that the insurer was not liable to pay the compensation.

In support of the appeal, learned Counsel for the appellants submitted that the High Court ought to have directed the insurer to pay and recover the amount from the insured. Learned Counsel for the insurer submitted that no such direction could, have been given on the basis of the position in law stated by this Court.

Third -party risks the background of vehicles which are subject -matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 needs to be juxtaposed with Section 95 of the old Act. Provision to Section 147 of the Act reads as follows:

Provided that a policy shall not be required - -

(i) to cover liability in respect of the death, arising out of and in the course of his employment, the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out and in the course of his employment other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923) in respect of the death or bodily injury to, any such employee - -

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or

(c) if it is a goods carriage, being carried in the vehicle.

(ii) to cover any contractual liability.

It is of significance that proviso appended to Section 95 of the Old Act contained in Clause (ii) which does not find place in the new Act. The same reads as follow - -

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance a contract of employment, to cover liability in respect of the bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.

The difference in the language of ''goods vehicle'' as appearing in the old Act and ''goods carriage'' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression ''in addition to passengers'' as contained in definition of ''goods vehicle'' in the old Act. The position becomes further clear because the expression used is ''goods carriage'' is solely for the ''carriage of goods''. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of ''public service vehicle''. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen''s Compensation, 1923. There is no reference to any passenger in "goods carriage''.

The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for passenger travelling in a goods carriage and insurer would have no ''liability therefor''.

The above position was highlighted in Devireddy Konda Reddy case (SCC pp. 342 -43, paras 9 -10) and National Insurance Company Ltd. v. Ajit Kumar.

FURTHER , in Brij Mohan and Others (supra.), Apex Court held: Where a labourer was travelling on the trolley of the tractor carrying earth to brick kiln he being merely a passenger, his claim was not maintainable.

In the present case, admittedly the vehicle in question was goods vehicle. Petitioner in his complaint has nowhere stated at all as to how many persons were travelling in the ''Dalla'' of the truck, besides the driver. It has only come during the course of investigation conducted by the Police that "a person was sitting and travelling on the back side ''Dalla'' of Mini Truck who died."

WHEREAS the respondent''s case is that after though survey and investigation it was found that in all five persons were travelling in the truck question as passengers and therefore, there has been a clear violation of the terms and conditions of the policy.

THE judgments cited by the learned Counsel for the petitioner are not applicable to the facts and circumstances of the present case. Thus, the petitioner has concealed the material facts from all the Consumer Fora. Therefore, as evident from the record that as certain passengers were travelling in a goods vehicle, the respondent rightly repudiated the claim of the petitioner. The State Commission, under these circumstances, was justified in passing the impugned order. Hence, there is no jurisdictional or any legal error in the impugned order passed by the State Commission. We find no reasons to disagree with the finding of the State Commission. Consequently, there is no merit in the present revision petition and the same stand dismissed. No order as to cost.