MOHAN B. KARKERA vs National Insurance Co. Ltd.

XIN this complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986, the Complainant has sought compensation in a sum of Rs. 88,890/- with interest thereon from the Opposite Party-National Insurance Company.

IT is the case of the Complainant that his Truck-Tata L.P. Truck 1988 model (was insured with the Opposite Party for a period of one year commencing from 28.3.89 to 27.3.90. The assured amount was a sum of Rs. 3,00,000/-. It is the further case of the Complainant that during the currency of the said policy the truck met with an accident at Bagewadi on 13.7.89 and suffered heavy damage. The Complainant reported the matter and filed the claim petition with the Opposite Party claiming compensation. The Opposite Party by its letter on 5.6.90 repudiated the claim of the Complainant stating that by carrying non-fare paying passengers in the goods vehicle the Complainant had violated the conditions of the policy and therefore the Insurance Company was not liable to make payment of any amount to the Complainant.

The Complainant thereafter filed this complaint seeking compensation, as referred above.

THE Opposite Party filed its version and admitted the fact that it had insured and issued the policy for the truck of the Complainant as averred by the Complainant. It also admitted the fact that the said truck during the currency of the policy met with an accident. The Opposite Party further averred that the Complainant at the time of the accident was carrying 10 persons in the said goods vehicle and so he had acted in violation of the terms and conditions of the policy and, therefore, the company was not liable to make payment of compensation, as claimed by the Complainant.

THE Opposite Party on the basis of these averments sought the complaint to be dismissed. During enquiry the Complainant remained absent and did not even file the affidavit in evidence. The Opposite Party filed the affidavit in evidence. The documents filed by the Opposite Party came to be marked as Exs. R-l to R-10. We heard the learned Counsel for the Opposite Party, perused the pleadings and the material on record.

EX. R-9 is the copy of the F.I.R. regarding the said accident. It shows that 8 persons who were travelling in the truck of the Complainant while the truck met with an accident had sustained injuries.

EX. R-2 is the Private and Confidential Motor Spot Survey Report. It shows that at the time of the accident 8 persons who were travelling in the truck had sustained injuries. The Opposite Party, the Assistant Administrative Officer of the Opposite Party-company, has filed the affidavit and at Para 3, has averred thus: "3. I submit that the insured had permitted the vehicle to be used for carrying passengers and at the time of the accident more than 10 gratuitous passengers were being carried; out of whom 8 persons were injured and 6 of those have filed claim petitions before the Motor Accidents Claims Tribunal."

and that is the version at para 15 of the version filed by the Opposite Party, the material part of it reads as under: "....Subsequent to the receipt of the claim form, while examining the claim, it was noticed that at the time of the accident, the insured had carried 10 persons in the lorry as disclosed in the F.I.R. submitted in Crime No. 108/1989 of Bagewadi Police Station. However, the insured in his claim form at para 7 dealing with third party injury/ property/damage, the columns were filled up as "Not applicable" and "Nil"; eventhough, he was aware of the fact that 8 passengers carried in the truck were injured......"

The insured vehicle admittedly was a truck, a goods vehicle. It was insured as a goods carrying vehicle. The limitations as to use of the vehicle under the policy under Clause (3) reads: "(3) Use of carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of the W.C. Act, 1923."

THIS stipulation contained in the contract of insurance would show that the vehicle was not to be used for carrying passengers. It is clear from the facts and in the circumstances of the case that the liability of the Insurance is clearly excluded.

THE Complainant has not placed any material on record to show that the persons travelling in. the truck at the time of the accident were not gratuitous passengers. As referred to above, the Complainant has not even filed the affidavit and stated who those persons were who were travelling in the vehicle at the time of the accident. 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. In exclusion Clause No. (3) contained in the policy under the heading "Limitations 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 stipulation 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 Co. 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. The order of the State Commission is accordingly set aside and the complaint petition filed against the Insurer by the Respondent herein is hereby dismissed. No costs."

IN view of this principle as laid down by the National Commission, we are constrained to hold that the Opposite 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 pay and bear their own costs. Complaint dismissed.