K.M.NAGARATHINAM-/ vs NEW INDIA ASSURANCE CO. LTD.-/

THIS appeal is directed against the order dated 25th day of March, 1998 in O.P. No. 302/1995 on the file of the District Consumer Disputes Redressal Forum, Madurai.

THE appellant is the complainant while the respondent is the opposite party. II (1996) CPJ 18 (SC) Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant is the owner of Mahendra vehicle bearing registration No. TN-60-0340. It was a carriage passenger vehicle. Its capacity is to carry passengers inclusive of driver to the tune of 13 persons. The said vehicle was insured with the opposite party. It was a comprehensive insurance policy. The policy was enured for a period between 1.11.1993 and 31.10.1994.

THE vehicle met with an accident on 5.6.1994 at about 16.30 hours when it was proceeding from Bodimettu to Bodinaickanoor. As a result of the accident, the vehicle sustained heavy damage. THE accident was intimated to the opposite party. THE opposite party, on receiving the intimation of accident, sent a Surveyor to make on the spot survey. THE Surveyor by name Mr. K. Kalidasan filed his report dated 30.6.1994. He had simply noted the damage sustained by the vehicle without quantifying or assessing the damage sustained by the vehicle in terms of money. Subsequently, a Surveyor by name Er. R. Rajaram was appointed by the opposite party Insurance Company. THE Surveyor after inspecting the vehicle submitted his report dated 19.7.1994. He, on his part taking into account the damage sustained by the vehicle as noticed by the first Surveyor, quantified the damage in a sum of Rs. 4,101/-. THEn again, the opposite party Insurance Company appointed the initial Surveyor K. Kalidasan to make a resurvey and he, in turn, submitted his report dated 5.8.1994. THE Surveyor had not quantified or assessed the damage sustained by the vehicle in terms of money. In the meantime, the complainant is said to have entrusted the vehicle for repairs to some private workshop. The repair to the vehicle had been carried out and the vehicle was put on road on 29.6.1994. The complainant would claim that he had incurred an expense of Rs. 15,000/- for putting the vehicle back to a roadworthy condition. He would also claim the loss of income quantified in a sum of Rs. 5,000/- for the period for which the vehicle was not put on the road. He would also claim a sum of Rs. 10,000/- for mental agony and anguish stated to have been suffered by him. The opposite party Insurance Company, however, repudiated the claim made by the complainant by a communication dated 29.12.1994 on the ground that the vehicle had carried passengers at the time of the accident more than the limit as allowed by the permit conditions.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below alleging deficiency in service on the part of the opposite party and for certain reliefs as prayed for in the complaint. The opposite party Insurance Company in pith and substance would contend that there was no deficiency in service on their part. The repudiation of the claim as made by the complainant is fully justified inasmuch as the complainant used the vehicle for carrying more passengers than the allowed limit as per the permit conditions at the time of the accident. The complaint is, therefore, liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the opposite party and consequently dismissed the complaint without costs.

AGGRIEVED by the order as above, the complainant resorted to the present action by engaging a Counsel of his choice namely, learned Counsel Mr. R. Thyagarajn.

ON service of process, the respondent/opposite party Insurance Company also entered appearance through a Counsel of their choice namely, learned Counsel Mr. R. Vedantham. We heard the arguments of learned Counsel Mr. R. Thyagarajan appearing for the appellant/complainant and learned Counsel Mr. S. Natarajn representing learned Counsel Mr. R. Vedantham appearing for the respondent/opposite party.

From the pith and submission of learned Counsel appearing for the respective parties, the one and only question that crops up for consideration is as to whether the order of the Forum below in dismissing the complaint on the facts and in the circumstances of the case is sustainable in law.

EVEN at the outset we may point out that though the Forum below was apprised of the legal position governing the factual matrix of the case by referring to the decision emerging from the Apex Court of this country in the case of B.V. Nagaraju v. M/s. Oriental Insurance Co. Ltd., Division Office, Hassan, II (1996) CPJ 18 (SC), yet it failed to give a legal fitment to the factual matrix of the case leading to the dismissal of the complaint. Pertinent it is to refer to at this juncture the decision of the Supreme Court as referred to above. In that case, the vehicle was a goods vehicle. The vehicle was carrying extra passengers in the sense of carrying more than the permitted passengers. There was an exclusion clause in the policy of insurance. Under the exclusion clause, if extra passengers are carried in the goods vehicle at the time of accident, the liability of the Insurance Company will get excluded. This sort of a clause in the insurance policy was strictly construed by the National Commission and the claim had been repudiated. Consequently the aggrieved complainant agitated the matter further before the Supreme Court. What the Supreme Court said in such a context is getting reflected at paragraph 8 of its order at page 21 and it reads as under : "8. The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia''s case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, indemnify the damage caused to the vehicle, which we hereby do."

The dictum as laid down by the Supreme Court is applicable in all fours to the facts of the instant case. In the case on hand, the Mahendra Van, which was insured with the opposite party was a passenger vehicle. The loading capacity of the vehicle is 13 persons inclusive of the driver. No doubt true it is that at the time when the accident took place on the date in question, the vehicle was carrying 20 passengers. This aspect of the matter is getting reflected in the FIR filed before the competent police station and a copy of the said FIR is appended to the Survey Report marked as Ex. B2 dated 19.7.1994. It is this which served as a basis for the opposite party Insurance Company to repudiate the claim by means of a communication dated 29.12.1994 marked as Ex. A19. This sort of a repudiation, we feel, is not justifiable on the face of the dictum emerging from the Apex Court of this country in the case of B.V. Nagaraju (supra). The exclusion clause, according to the Supreme Court, must have to be read down to serve the main purpose of the contract. The contract by the complainant with the opposite party Insurance Company was to get himself indemnified with respect to the damage sustained by the vehicle in case an accident takes place. In the case on hand, the accident as a matter of fact, took place during the coverture of insurance the complainant had with the opposite party. It is nobody''s case that the accident took place as a consequence of overloading of the passengers in the vehicle at the time of the accident. The claim made by the complainant is only with reference to the damage sustained by the vehicle in the accident. Such being the case, the dictum as laid down by the Supreme Court in the case of B.V. Nagaraju (supra), is fully applicable and the repudiation of the claim as made by the complainant by the opposite party is not at all justifiable. Therefore, it is that the repudiation so made would definitely tantamount to deficiency in service on the part of the opposite party Insurance Company.

THE next question that arises for consideration is as to what is the extent of damage to which the complainant is entitled to from the opposite party Insurance Company as a consequence of certain damages sustained by the vehicle which met with an accident on the date in question. THE opposite party Insurance Company deputed a Surveyor by name Mr. K. Kalidasan to inspect the vehicle on the spot and to assess the damage sustained by the vehicle. As a matter of fact, the said Surveyor inspected the vehicle, assessed the damages in the sense of identifying the parts of the vehicle got damaged as a consequence of the accident, submitted his report on 30.6.1994. THE Surveyor as a matter of fact did not quantify the damage sustained by the vehicle in terms of money. Consequently, the opposite party Insurance Company deputed a second Surveyor by name R. Rajaram to inspect the vehicle. On inspection, he identified the damages as pointed out by the first Surveyor Kalidasan and also quantified the damages in terms of money namely, Rs. 4,101/-. For the reasons best know to the opposite party Insurance Company, it again appointed the original Surveyor Kalidasan to make a resurvey and he, in turn, submitted his report, Ex. B3, dated 5.8.1994. In the said report, he had not quantified the damages in terms of money. THErefore, the fact remains even according to the Surveyor as deputed by the opposite party Insurance Company, the vehicle of the complainant which was insured with the opposite party Insurance Company involved in an accident during the coverture of the policy and the damages sustained by the vehicle of the complainant had been assessed at Rs. 4,101/- by its Surveyor by name R. Rajaram. Despite such a report, the opposite party Insurance Company repudiated the claim in toto. THE repudiation of such a claim by the opposite party Insurance Company, we rather feel, is the blissful ignorance of the legal position. We can understand the Insurance Company being placed in such a position. It is, however, surprising for us that despite the fact that the Forum below referred to the correct legal position emerging from the Supreme Court, the Forum below failed in not giving a legal fitment to the factual matrix of the case of the instant case. Such being the case, there is no other go for us except to set aside the order of the Forum below. With regard to the amount of Rs. 15,000/- said to have been incurred by the complainant in effecting repairs to the vehicle, no proper materials in the shape of documents had been placed on record. All the documents placed on record excepting a few are only quotations. Such being the case, we cannot accept the claim of the complainant in stating that he incurred an amount of Rs. 15,000/- for effecting repairs to the vehicle. Such being the case, there is no other go for us except to accept the Survey Report, Ex. B2, which quantified the damage sustained by the vehicle to the tune of Rs. 4,101/-. This report is dated 19.7.1994. The complainant had been deprived of the benefit of such an amount all along these periods since 19.7.1994. Such being the case, it goes without saying that the complainant is entitled to interest on such an amount at a reasonable rate. We feel that it won''t be besides justice to grant interest at the rate of 12% per annum on Rs. 4,101/- on and from 19.7.1994. We accordingly do so. In view of grant of interest, we are not granting any compensation for mental agony and anguish said to have been suffered by the complainant. The reason for doing so is rather obvious. The superior Forum laid down the dictum that in case of deficiency in service, it is open to the Fora constituted under the Act, 1986 either to award interest or to grant compensation for mental agony and anguish, that is to say, either one of two things alone is capable of being granted.

IN fine, the appeal is allowed in part; the order of the Forum below is set aside and the opposite party is directed to pay to the complainant a sum of Rs. 4,101/- with interest at 12% per annum on and from 19.7.1994 till realisation. IN view of the divided success by the parties that the INsurance Company succeeding before the Forum below and the complainant succeeding before us, we are not awarding any costs. We, however, make it crystal clear that the order of ours as above is required to be complied with by the opposite party INsurance Company within a period of one month from the date of receipt of the order or otherwise it would be open to the complainant to invoke jurisdiction of Section 27 of the Consumer Protection Act, 1986 [for short, "the Act, 1986"]. Appeal partly allowed.