NEW INDIA ASSURANCE COMPANY LIMITED vs Mithilesh

THIS is an appeal against the judgment and order dated 29.1.2000 passed by District Consumer Forum, Lakhimpur-Kheri in Complaint Case No. 246/1999.

THAT facts of the case stated in brief are that the complainant claimed a sum of Rs. 1,12,472.96 alongwith interest at the rate of 18% per annum and cost. The Jeep No. 31C/0298 was insured with the opposite party. The duration of policy was 13.7.1998 to 12.7.1999. This jeep met with an accident on 21.2.1999. The second survey was made on 28.2.1999 and after its repair the survey was again made on 2.5.1999. The claim was put forward with the Insurance Company but inspite of several attempts, the amount has not been paid by the Insurance Company.

The Insurance Company alleged in the written statement that according to the registration certificate and permit, only seven persons could travel in the vehicle including the driver but at the time of accident 13 persons were sitting in the vehicle which is in clear violation of the terms of policy. It is further alleged that the driving licence was also manipulated hence the claim was repudiated.

THE learned District Forum after considering the case came to the conclusion that the repudiation is wrong and as such decreed the complaint for a sum of Rs. 69,778/- alongwith interest at the rate of 18.5% per annum and cost of Rs. 500/-. It was further ordered if the amount is not paid within one month then the interest shall be paid at the rate of 24% per annum. Aggrieved against the order of the learned District Forum, the appellant 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 appellant without issuing notice to the other side. The main contention of the learned Counsel for the appellant is that the terms of the policy were violated by the complainant as 13 persons were sitting in the vehicle at the time of accident while according to the terms and conditions of the policy only 7 persons including the driver were permitted. There is no evidence from the side of the appellant that on account of 13 persons in the vehicle the accident took place. If the over-loading was the direct cause of the accident then this could have been a ground for repudiating the claim. No such indication is to be found in the report dated 3.3.1999 of the Surveyor. In the nature of accident, it is mentioned by the Surveyor that when the insured Jeep was proceeding to Lakhimpur-Kheri with the passenger from Haridwar on the way near the side of accident, an incoming Truck No. D1-1G/B-2486 overtook another truck to avoid the collision. The insured driver steered the Jeep towards right side but that incoming truck hitted/dashed with the insured Jeep, on account of which it was badly damaged. Thus, this summary of report clearly goes to show that there was no fault of the driver on account of which the accident took place. These 13 persons who were travelling in the Jeep did not contribute to the accident at all. The driver of the Jeep has to steer his vehicle towards the right side in order to avoid the collision with another truck which was overtaking the other vehicle. Thus no fault of the driver of the Jeep can be observed from this report in which the accident has been detailed. The Surveyor has given the extent of damage and the total assessment of the loss has been done at Rs. 69,778/-. This much amount has been awarded by the learned District Forum as damages for the damage caused to the Jeep. Therefore, it cannot be said that the learned District Forum has granted damages on the higher scale. Only that much amount has been granted which was assessed by the Surveyor of the Insurance Company. It was option of the Insurance Company to have got the vehicle repaired because it has full discretion in this matter and the insured has hardly anything to do with it. This view was taken by the Hon''ble Supreme Court in the case of N.R. Srinivasa Iyer v. New India Assurance Company Ltd., AIR 1983 Supreme Court 899. This case was also relied upon by the National Commission in the case of New India Assurance Company Ltd. v. S.K. Pruthe, III (1994) CPJ 5 (NC). The Hon''ble Supreme Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., II (1996) CPJ 28 (SC), has held that if the terms of the insurance policy provided that the insured vehicle is entitled to carry only 6 workmen, excluding the driver and carried more passengers namely 9 then it cannot be assumed that the risk has in any way increased by carrying more passengers. It was further held that how could those added persons be said to have contributed to the causing of the accident. In the present case, the accident took place on account of another truck which was coming from the other direction. It cannot be said that the accident was caused on account of the increased load in the Jeep on account of extra passengers. The Surveyor reveals that the insured vehicle was going to Lakhimpur-Kheri from Haridwar and near the side of accident, the one truck overtook another truck and in order to avoid the collision the insured driver steered the Jeep towards the right side but the incoming truck dashed with the insured jeep. Thus, there is no direct nexus between the carrying of more passengers and the accident in the present case. The accident was caused on account of some other facts which have been indicated above. Therefore, it cannot be said that the insured Jeep met with the accident on account of more passengers in the Jeep.

THUS, the fact that in the claim form even if it was not mentioned that more passengers were travelling in the jeep then it cannot be said to be material suppression of fact because it did not cause the accident. The cause of accident was something else.

THE learned District Forum has awarded interest at the rate of 24% per annum in case the amount is not paid in time. In view of decision of National Commission and Hon''ble Supreme Court the interest is reduced to 18% per annum. Thus, in view of what has been said above, we find that the judgment and order of the learned District Forum are perfectly correct and requires no interference except about rate of interest. The appeal is liable to be dismissed. Order

The appeal is dismissed and the judgment and order of the learned District Forum are confirmed with the modification that the rate of interest will be 18% per annum till the date of payment.

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