NATIONAL INSURANCE CO. LTD. vs SURESH KUMAR

THIS revision petition has been filed by the petitioner against the order dated 29.06.2009 passed by the H.P. State Consumer Disputes Redressal Commission, Shimla (in short, ''the State Commission'') in Appeal No. 137 of 2007 - Suresh Kumar Vs. National Insurance Co. Ltd. by which, while allowing appeal, order of District forum dismissing complaint was set aside and complaint was partly allowed.

BRIEF facts of the case are that Complainant/Respondent was registered owner of Mahindra pick up jeep No. HP -31 -2782 and he got it insured from OP/petitioner for a sum of Rs. 2,10,000/ - for a period of one year from 20.3.2005 to 19.3.2006. On 27.8.2006, vehicle met with an accident and vehicle was damaged and FIR was lodged. Complainant reported incident to OP and OP asked complainant to get it repaired. Complainant got it repaired and paid Rs. 1,00,000/ - for repairs and claim was submitted to OP. OP vide letter dated 24.1.2006 repudiated claim on the ground that at the time of accident vehicle was carrying six unauthorized persons. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint, admitted issuance of insurance policy, but submitted that surveyor found that at the time of accident vehicle was carrying six unauthorized passengers whereas vehicle was registered as goods carrier, so, claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Appeal filed by the complainant was allowed by learned State Commission vide impugned order and OP was directed to pay Rs. 59,722/ - with 9% p.a. interest and further directed to pay Rs. 5,000/ - as cost of litigation against which, this revision petition has been filed. None appeared for the respondent even after service and he was proceeded ex -parte.

HEARD learned Counsel for the petitioner and perused record.

LEARNED Counsel for the petitioner submitted that inspite of proof of breach of terms and conditions of policy, learned State Commission committed error in allowing complaint; hence, revision petition be allowed and impugned order be set aside. It is not disputed that complainant''s goods vehicle was insured by OP and during subsistence of policy, vehicle met with an accident and was damaged.

LEARNED State Commission observed that vehicle was having sitting capacity of 1 + 2 whereas, there were six persons traveling in the vehicle, but perusal of insurance policy reveals that it covered owner -cum -driver and three employees meaning thereby, four persons were entitled to travel in the vehicle, but seven persons were traveling in the vehicle against capacity of four persons. Learned State Commission after elaborate discussion, observed that there was unrequited evidence of three persons, who were traveling in the vehicle along with their goods. In such circumstances, those three persons cannot be treated as unauthorized passengers or passengers being carried for hire. It was further observed that learned District Forum wrongly assumed that all the six persons were sitting in driver''s cabin meaning thereby, there was no evidence on record to prove that all the six persons were sitting in driver''s cabin and in such circumstances, accident cannot be said to be due to overloading of passengers in the cabin. Learned State Commission in paragraph 10 of the judgment also observed that accident was due to mechanical failure and not on account of overloading.

IT is true that there was breach of terms and conditions of policy, as vehicle was carrying more persons than permissible. Learned Counsel for the petitioner submitted that on account of breach of terms and conditions of policy, District Forum rightly dismissed complaint. She also placed reliance on the judgment of this Commission in R.P. No. 1823 of 2012 - Kalyan Singh Chauhan Vs. National Insurance Co. in which revision petition filed by the complainant was dismissed, as vehicle was plying at public place without valid registration and valid route permit. Aforesaid case is not applicable to the facts and circumstances of this case because in the case in hand, there is no fundamental breach of terms and conditions of policy, but only some breach of terms and conditions of the policy in which claim is to be allowed on non -standard basis. This Commission in : II (2006) CPJ 144 (NC) - New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak allowed claim on non -standard basis as vehicle was carrying more passengers than permitted. In, II (2006) CPJ 83 (NC) - United India Insurance Co. Ltd. Vs. Gian Singh claim was allowed on non -standard basis as it was carrying 12 unauthorized persons. This Commission in R.P. No. 178 of 2011 - Jagdish Rana Vs. National Insurance Co. Ltd. allowed claim on non -standard basis as there were 6 persons against capacity of 4 persons. In R.P. No. 3689 of 2013 - K.T. Maruthi Vs. The Branch Manager, Reliance General Ins. Co. Ltd., claim was allowed on non -standard basis as there were six persons in the vehicle against capacity of two persons including driver.

IN the light of aforesaid judgments, it becomes clear that complainant was entitled to claim on non -standard basis and learned State Commission has rightly allowed claim on non -standard basis with 75% of the estimated cost.

I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.