HARESH KUMAR TRILOKNATH SHARMA vs NATIONAL INSURANCE COMPANY LTD., DEVCHANDNAGAR

COMPLAINANT owned a "Bajaj Tempo Matador Taxi" bearing Registration No. GJ-9-T-1050 (vehicle for short). The vehicle was purchased for Rs. 2,10,000/- and it was hypothecated with Himatnagar Nagrik Sahkari Bank Limited to secure loan of Rs 1,43,000/- advanced to the complainant. The vehicle was insured for Rs. 2,10,000/- with the opponent-National Insurance Company Limited and the insurance was valid for the period from May 4,1993 to May 3,1994. The vehicle carrying passengers met with an accident on September 16,1993. It is alleged that a tanker coming from the opposite direction collided against the vehicle on highway between Himatnagar and Shamlaji. The accident is alleged to have occurred on account of rash and negligent driving on the part of the driver of the truck. About 10 to 12 passengers travelling by the vehicle died on the spot and others were injured. Driver of the vehicle lodged complaint with Gatrohi Police Station against the driver of the tanker. According to the complainant, the vehicle was a total loss.

THE complainant gave intimation regarding the accident to the opponent who appointed K.B. Joshi as Surveyor to assess the loss. Later on A.S. Rathod was appointed to survey the loss. It is the case of the complainant that he submitted all the information and documents as required by the Surveyors. THE Surveyor A.R. Rathod recommended to settle the claim for Rs. 1,90,000/- on total loss basis. THE complainant agreed to accept this recommendation and gave consent letter to the Surveyor on October 13,1993. THE salvage of the vehicle was to be preserved till the opponent took decision regarding the complainant''s claim. The opponent, however, did not take decision for a long time inspite of requests made by the complainant. On June 27,1994 the opponent wrote letter repudiating the complainant''s claim on the ground that the vehicle was carrying more passengers than its capacity. It is submitted that if the driver of the vehicle took additional passengers without the knowledge of the complainant, the complainant could not be said to have committed breach of the terms of the policy. It is further submitted that mere violation of permit would not absolve the opponent. It is, therefore, submitted that the opponent is guilty of deficiency of service in repudiating the complainant''s claim. According to the complainant, after the claim was repudiated by the opponent, salvage of the vehicle was sold for Rs. 22,000/-. The complainant has therefore filed this complaint for recovery of Rs. 1,88,000/- under the insurance policy and compensation as stated in paragraph 10 of the complaint.

The complaint is resisted by the opponent by written statement Exh. 7. The main contention which is raised in the written statement is the same on which the complainant''s claim was repudiated. It is submitted that the vehicle could not have carried more than six persons including a driver. The vehicle, however, carried large number of passengers and there was clear violation of the permit granted by the R.T.O. and the conditions of the policy. The opponent has also denied the complainant''s right to claim any amount under insurance policy or compensation as stated in the complaint. It is submitted that the opponent was justified in repudiating the complainant''s claim and therefore, the complaint is not maintainable.

THE facts that the vehicle was insured with the opponent and that it met with the accident as stated in the complaint are not denied by the opponent. THE ground on which the claim is repudiated and contested is that the complainant had violated the conditions of permit and the insurance policy. THE certificate of registration (Annexure-A page 18) shows that the sitting capacity of the vehicle was 6+1 (driver). Thus, the sitting capacity of the vehicle as per the registration certificate was in all seven persons. THE complainant was granted contract carriage permit for the vehicle on May 7,1993 and this permit is at Annexure-B to the complaint. This permit is issued subject to the provisions of the Motor Vehicles Act and the Gujarat Motor Vehicles Rules. THE insurance policy contains clause regarding limitation as to use. This clause provides that the policy covers the use only under a permit within the meaning of Motor Vehicles Act, 1988 or such a carriage falling under Sub-section (3) of Section 66 of M.V. Act, 1988 and that the policy does not cover use for organised racing or speed testing. Section 66(1) of the Motor Vehicles Act among other things provides that no owner of a Motor Vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. THErefore, considering the registration certificate, term of the insurance policy and Section 66 of the Motor Vehicles Act, there is no doubt that the vehicle could not have carried more than six passengers and a driver. This position is not disputed even by the complainant. When the accident occurred the vehicle which was of the capacity of only 7 persons carried 24 passengers and a driver. Out of 24 passengers, 14 passengers died on the spot and 10 sustained injuries and they were admitted to civil hospital at Himatnagar. THEre was, therefore, clear violation of the registration certificate, term/clause of the insurance policy and aforesaid provisions of the Motor Vehicles Act. It was however urged on behalf of the complainant that (1) the driver had taken passengers exceeding six without his knowledge or consent; and (2) the fact that there were passengers exceeding the capacity in the vehicle had not contributed to the occurrence of the accident. The complainant''s plea that the driver had taken more passengers than the capacity of the vehicle without his consent and knowledge appears to be an afterthought. The above plea appears to have been taken for the first time in the complaint. It was never represented by the complainant to the opponent that the driver of the vehicle had taken passengers without his consent or knowledge. This plea appears to have been taken only in view of the decision of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Ors., AIR 1987 SC 1184.In this decision view was taken to the effect that mere breach of exclusion clause of insurance in the policy does not absolve the insurer of his liability and he has to establish that insured himself was guilty of committing breach of term in contract of insurance. We are also not inclined to accept the fact that there were 24 passengers in the vehicle had not contributed to the happening of the accident. Capacity of the vehicle was to carry six passengers but against this capacity, 4 times i.e. 24 passengers were taken in the vehicle. The vehicle was therefore overcrowded and that must obviously have affected the driving of the vehicle by the driver.

CONSIDERING all the facts and circumstances of the case, it cannot be held that repudiation of the complainant''s claim by the opponent was not bona fide. That being the position, it cannot be said that there was deficiency of service on the part of the Insurance Company which would entitle the complainant to file a complaint under the Consumer Protection Act. We do not wish to express any opinion whether or not complainant has any other remedy available to him under the law. In the result, this complaint fails and is dismissed. The complainant shall pay to the opponent cost of Rs. 2.000/-. Complaint dismissed with costs.