NATIONAL INSURANCE COMPANY LIMITED vs MUNNI LAL YADAV

THIS is an appeal against the judgment and order dated 30.6.1997 passed by District Consumer Forum, Jaunpur in Complaint Case No. 170/1995. The facts of the case stated in brief are that the complainant had purchased one Mahindra Commander Jeep in 1992 having Registration No. UP 62A 1362. The financing of this purchase was done by M/s. Century Finance Corporation. THIS jeep was got insured from National Insurance Company Limited from 6.7.1993 till 5.7.1994. On 20th January, 1994 at about 7 p.m. the complainant''s jeep met with an accident on Bakuchiya Road at the said turning when one bull came in front of the jeep on account of which the balance of the jeep was upset and the jeep hit a tree on the left hand side of the road. Shambhu Nath was driving the vehicle and some persons sitting on the jeep were also injured. The driver Shambhu Nath had driving licence of the vehicle.

AN FIR was lodged on 21.1.1994 and the information was also given to the Insurance Company to appoint the Surveyor. The Surveyor visited the site, took photographs and, after completing all the formalities, assured the complainant that he will get the damages of the jeep. The complainant took the vehicle to Varanasi and contacted a mechanic of Bengal Auto Garage. Thereafter the jeep was examined by M/s. Akram Khan and Sons who by their letter dated 17.2.1994 informed the complainant that this accidented jeep is not repairable. The complainant got this letter received by the National Insurance Company. On demand he submitted other papers also. Thereafter, the Insurance Company appointed Sri Rajesh Agarwal, Surveyor who visited the garage and inspected the accidented jeep. After inspecting the jeep the Surveyor Sri Rajesh Agarwal assessed the damages at Rs. 72,000/- and sent the report to the Insurance Company. Thereafter the complainant got the jeep repaired on the assurance by the Surveyor that he will get the amount from the Insurance Company. It is further alleged that after the report of the Surveyor, the Insurance Company directed the complainant to get the jeep repaired at his own costs and submit the bills etc. The complainant got the jeep repaired spending a sum of Rs. 75,000/-. A sum of Rs. 35,000/- was also told by the mechanic for changing the chassis. The complainant several times requested the Insurance Company for payment of the amount but the same was not done. Hence the complaint was lodged. In the written version the opposite parties alleged that the claim has already been repudiated, information of which has been given to the complainant. After the Surveyor''s report an Investigator was appointed and on the basis of the statement of the witnesses it was revealed that one Bhayya Lal, who had no driving licence, was driving the vehicle and the vehicle was being used as a taxi while it was insured as a private vehicle. It is further alleged that the brother-in-law (''Sala'') was also sitting in the jeep. As the vehicle was being used in violation of the terms of the policy, the claim was repudiated.

The parties filed evidence in support of their respective contentions and the learned District Forum, after considering the case, came to the conclusion that the complainant is entitled to claim a sum of Rs. 50,000/- as damages alongwith 12% per annum interest.

AGGRIEVED against the order of the learned District Forum, the Insurance Company has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the parties and perused the evidence on record.

LEARNED Counsel for the appellant has argued that Bhayya Lal was driving the vehicle in question and he had no driving licence. According to the learned Counsel Shambhu Nath was not the driver of the vehicle. The argument of the learned Counsel for the appellant is based on the report of Investigator. It has not been indicated anywhere as to what was the necessity of appointing an Investigator when a Surveyor had already been appointed by the Insurance Company and he had submitted the report. The report of the Investigator on the question of driving the vehicle by Bhayya Lal cannot be relied upon as the same is not supported by any evidence on record. Mere statement of the Investigator in the report unsupported by the affidavit of the persons on the basis of whose statement this report was prepared cannot be relied upon. The Investigator may write anything but that will not take the place of proof. Every fact which is alleged in the report of the Investigator has to be proved as a fact on records. The bare report of the Investigator is a worthless piece of paper. As there is no supporting evidence, it cannot be said that Bhayya Lal was the driver of the vehicle. The evidence supported by an affidavit and on behalf of the complainant that Shambhu Lal was the driver has to be relied. The next arguments of the learned Counsel for the appellant is that the vehicle in question is registered as a public vehicle while it was insured as private vehicle. According to the learned Counsel there are different premium rates for public vehicle and private vehicle, but those rates have not been disclosed or no document has been filed on record, to show as to what are the rates of premium for each type of vehicle. He has further argued that according to the Circular of the General Insurance Company under which all the Insurance Companies work on general side, there is a rule that if a taxi is insured as a private vehicle, 25% of the amount of damages is to be deducted from the compensation amount.

IT is an admitted fact that the Surevyor has passed a claim for Rs. 75,000/- but the learned District Forum has only awarded a sum of Rs. 50,000/-. Learned Counsel for the complainant has argued that even if the argument of the learned Counsel for the Insurance Company is accepted that only 75% claim should be passed, then also the claim awarded by the District Forum does not exceed 75% of the amount which was assessed by the Surveyor. As mentioned in the earlier part of the judgment, the Surveyor has assessed a sum of Rs. 75,000/-. After deducting 25% amount from this, it will not be less than Rs. 50,000/-. If we deduct 25% from Rs. 75,000/-, then the amount will be about Rs. 56,000/- while the learned District Forum has decreed the claim for Rs. 50,000/- only.

IT has further been argued by the learned Counsel for the appellant, there were eight passengers including the driver. Thus there was only one extra passenger in excess of the capacity mentioned in the terms and conditions. In the case of B.V. Nagaraju v. Oriental Insurance Company Limited, II (1996) CPJ 28 (SC)=I (1997) ACC 123 (SC)=1986-99 Consumer 4785 (NS), the Hon''ble Supreme Court of India had an occasion to deal with such a contingency. In that case nine persons were travelling in the vehicle while six were permitted. IT was mentioned in the judgment that the claim did not relate to any injury to those 9 persons. The Hon''ble Supreme Court held as under : "The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor."

The Hon''ble Supreme Court has also held as under : "Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a "rule", usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor''s contractual obligations."

Thus the Hon''ble Supreme Court struck down the exclusion clause to the extent which they were inconsistent with the main purpose or object of the contract. The main reason for doing so is that the excess passengers had not in any way contributed (as there is no evidence to the contrary on record) to the accident. The over-loading of the vehicle had no nexus with the cause of accident. The burden lays on the Insurance Company to prove that the presence of one more person in the vehicle contributed to the accident. As the facts have been pleaded, it shows that when the jeep was negotiating a turn, a bull came in front of the vehicle and due to impact of which the jeep hit a tree on the left side. The real cause of the accident is coming of the bull in front of the vehicle which ultimately hit the tree. The officers of the Insurance Company without applying their mind to the facts of the case repudiated the claim of the complainant after a highly belated period of 15 months. The Insurance Company should have gone to the root cause of the accident and then should decide the case on merit and should not take a view in order to reject the claim. Even for achieving this purpose, they have to resort to the appointment of successive Surveyors or the Investigators. This is highly deplorable state and it has been found in many cases that the claim is repudiated without any justification mainly to harass the insured.

Thus we find that the accident took place in the manner alleged by the complainant and it was being driven by a person who had a driving licence.

THUS we find that the judgment and order of the learned District Forum are correct on the basis of facts on record and requires no interference. Order The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. The appellant shall pay a sum of Rs. 2,000/- to the respondent/complainant as cost of this appeal.

LET compliance of this order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal dismissed with costs.