D. SHIVA KUMAR vs Oriental Insurance Co. Ltd.

IN this complaint, under Sec. 17 read with Sec. 12 of the Act, the complainant has sought compensation in a sum of Rs. 5,34,860/- with interest thereon from the Opp. Party, the Oriental INsurance Company Limited. ,

THE complainant had insured his goods vehicle bearing registration No. KA-05-2043 with the Opp. Party for a period from 14.10.1991 till 13.10.1992 as per Exs. C-2 and C-3. THE insured sum was a sum of Rs. 3,20,000/-. The said vehicle met with an accident on 21.6.1992 in the Market Yard near Channegowdana Doddi, on Bangalore-Mysore Road, in consequence of which, the said vehicle got damaged. The complainant further averred that he had spent huge amount for the repair of the said vehicle in a sum of Rs. 3,47,878.90.

The complainant made the claim with the Opp. Party. But the Opp. Party repudiated the claim as per Ex. C-5 stating that the vehicle was used for carrying passengers and so, in carrying the passengers in a goods vehicle has acted in violation of the terms and conditions of the policy, Ex. C-2, and in that view, it averred that the liability of the Insurance Company was excluded.

THE complainant, on the basis of these averments, sought compensation from the Opp. Party, as referred above. The Opp. Party filed its version. Admitted the fact that the vehicle in question was covered by a policy, that is ''B'' Policy for the period from 14.10.1991 to 13.10.1992. It further averred that when the vehicle in question met with an accident, as averred by the complainant, it was carrying a marriage party of 35 to 40 persons, and so, the use of this goods vehicle insured made by the complainant for carrying the passengers is clearly in violation of the terms and conditions of the policy. So, the complainant has acted in violation of the terms and conditions of the policy and was not entitled for the claim.

THE Opp. Party, on the basis of these averments, sought the complaint to be dismissed. During enquiry, the parties filed their affidavits in evidence. The documents filed by the complainant came to be marked as Exs. C-l to C-6 and the documents filed by the Opp. Party came to be marked as Exs. R-l to R-16. We heard the learned Counsel for the Opp. Party. The complainant and the learned Counsel for the complainant called out absent. Perused the pleadings of the parties and the material on record.

EX. C-2 is the cover note and EX. C-3 is the policy of Insurance. It shows that the said vehicle was insured as ''goods'' vehicle. The limitation as to use of the vehicle under policy EX. C- 3, reads as under:- "Limitation as to use: only for the carriage of goods within the meaning of the Motor Vehicles Act, 1988." Therefore, the expression ''limitation'' as to use contained in the contract of Insurance that the vehicle was to be used as the goods carrying vehicle and not for any other purposes.

IN the present case, the complainant at para (13) of the complaint has averred thus:- "It is submitted that the vehicle was carrying the goods along with the coolies at the time of accident without prejudice to the rights and contentions, it is stated, even otherwise the occupants in the said vehicle are not at all contributed any cause to the accident on the relevant day, what is claimed her is the damages to the vehicle in question but not the damages to the occupants of the vehicle, since the policy is comprehensive in nature."

It is clear from this averment when the vehicle met with an accident there were certain persons in the said vehicle. The complainant has stated that they were coolies.

Ex. R-4 is the copy of the FIR regarding this occurrence which shows that the said vehicle met with an accident, 25 to 30 passengers travelling in the vehicle sustained injuries.

EX. R-3 is the copy of the statement given by one Malakariah to the police at the time of investigation. He had stated that it was he who had engaged the lorry in question for carrying a marriage party. At the time of accident there were 40 to 50 persons travelling in the said lorry, the goods vehicle. Therefore, it is clear that the said goods vehicle that was insured with the Opp. Party by the complainant was used for carrying passengers.

THE complainant has filed the affidavit in evidence but he has not denied this fact that there were 40 to 50 passengers travelling in the said vehicle when it met with an accident. Ex. R-14 is the report of a private detective services. At para (1) of the report it is stated thus:- "Discreet enquiries made with regard to above claim have confirmed that both the vehicles KA-05-2043 (A DCM TOYOTA) and MYN4129 (Lorry) met with a headon collision near APMC yard, M.C. Road, Maddur, Mandya District on 21.6.92 at 4.10 p.m. The vehicle bearing No. KA-05-2043 was coming from Mysore to Sagola village via Maddur. There were about 40-50 persons including women and children and they were returning after attending a marriage at Mysore. The lorry MYN4129 was coming from Madanayakanahalli village near Channapatna. The lorry carried 50-60 persons including women and children, was also and returning after attending a marriage at the village. The collision resisted in injuries to about 30 persons from both the vehicles."

Therefore, it is clear that the insured vehicle at the time of the accident was not being used as stipulated under the contract of Insurance Exs. C-2 and C-3, that is, as goods carrying vehicle. The limitation as to use contained in the policy clearly stipulated that it was to be used only for the carriage of the goods. It is clear from the facts and the circumstances of the case that the liability of the insurance is clearly excluded. The expression ''stipulation'' contained in the contract of insurance as regards limitation as to use has to cover the rights and liabilities of the parties.

IN the present case, the vehicle at the time of the accident was not being used as a goods vehicle but it was being used as a passenger vehicle.

THE National Commission while considering such an aspect of the matter in First Appeal No. 439/1993 in M/s. Oriental Insurance Co. Ltd. v. B.V. Nagaraju, held as under:- "In our opinion Counsel appearing for the appellant is well founded in his contention that in the light of the admitted fact that the goods vehicle in question was carrying 9 persons as passengers at the time of occurrence of the accident in question, the exclusion Clause No. (3) contained in the policy under the heading ''Limitation as to use'' which states that ''the policy does not cover use for carrying passengers in the vehicle except employees (other than driver) not exceeding 6 in numbers coming under the purview of the Workmen''s Compensation Act is clearly attracted to this case and the liability of Insurer is excluded. We are unable to share the view taken by the State Commission that the factum of passengers having been wrongfully carried in the vehicle could become relevant only if it had in any manner contributed to the occurrence of the accident. THE express stipulations contained in the contract of insurance has to govern the rights and liabilities of the parties and in view of exclusion Clause No. 3 extracted above the insurance company is absolved of liability in respect of the loss sustained by the owner of the vehicle when the goods vehicle had been wrongfully used for carrying passengers."

In view of this principle as laid down by the National Commission, we are constrained to hold that the Opp. Party was justified in repudiating the claim of the complainant.

In the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs. Complaint dismissed.