NEW INDIA ASSURANCE COMPANY LIMITED vs S SUBHAN

MRS. M. Shreesha, Incharge President (Oral)-Aggrieved by the order in C. C. No. 101/2006 on the file of District Forum, Kadapa, opposite party preferred this appeal.

THE brief facts as set out in the complaint are that the first complainant purchased one Mahindra Commander Jeep bearing No. AP 04 U 9585 and insured with opposite party and paid premium and obtained policy bearing No. 611200/31/05/01/00632 on 26. 8. 2005 valid till 25. 8. 2006. The first complainant submitted that on 24. 3. 2006 the vehicle met with an accident near cotton mill on Kadapa-Pulivendula road within the limits of C. K. Dinne Police Station and the vehicle was badly damaged and one person died and others sustained injuries. A case was registered under Cr. No. 36/2006 at C. K. Dinne Police Station and informed to the opposite party. The first complainant spent Rs. 1,03,900 towards repairs and indebted to an extent of Rs. 1,00,000 to moneylenders to release the vehicle from the repairing shop. The first complainant submitted that the vehicle was purchased from 2nd complainant under hire purchase agreement and paid some loan amounts to second complainant and the second complainant had no rival claim. The first complainant submitted that the opposite party requested him to produce driving licence of the driver and he accordingly submitted all the records for settlement of the claim and the opposite party appointed a Surveyor to assess the damages of the vehicle. The first complainant submitted that he was under the impression that the opposite party would settle the matter and kept the vehicle at repair shop for 50 days due to financial problems but the opposite party sent a letter on 30. 8. 2006 repudiating the claim on the ground of carrying more persons than permitted. The first complainant submitted that his vehicle was a commercial vehicle carrying passengers and the driver had valid driving licence and the accident had not occurred on account of extra persons travelling in the vehicle and hence the repudiation is unjustified and submitted that he sustained loss of Rs. 20,000 of rent @ Rs. 500 per day. Hence the complaint for a direction to the opposite party to pay Rs. 1,63,900 apart from Rs. 10,000 towards conveyance and other expenses for getting the vehicle repaired together with interest at 24% p. a. from the date of accident till the date of realization, Rs. 20,000 towards financial loss for 50 days in keeping the vehicle in the repair shop, Rs. 20,000 for mental agony and Rs. 2,000 towards costs. Opposite party filed counter admitting the ownership, policy and the accident on 24. 3. 2006 and also admitted the expenditure incurred for repairing the vehicle to an extent of Rs. 1,63,900. Opposite party submitted that on 30. 8. 2006 they informed the 1st complainant that the vehicle was insured as a luxury tourist cab LMV and permission was given for six persons only including the driver and as per the FIR in Cr. No. 36/2006 of C. K. Dinne Police Station about 10 persons including the driver were travelling in the vehicle at the time of accident against the permitting seating capacity and hence in violation of the rules of M. V. Act and insurance policy conditions and hence the claim was rightly repudiated and the bills filed by the complainant did not contain APGST and CST numbers and prayed for dismissal of the complaint.

Based on the evidence adduced i. e. , Exs. A1 to A6 and B1 to B4 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to pay Rs. 37,500 together with costs of Rs. 500 to the second complainant, who in turn is directed to deduct all balance outstanding dues of loan amount with interest and pay the balance if any to the complainant.

AGGRIEVED by the said order, opposite party preferred this appeal. The learned Counsel for the appellant/opposite party submitted that the driver of the vehicle was held responsible for the accident and hence the District Forum ought to have dismissed the complaint. She also submitted that the facts of the case of the reported decision in AIR 1996 SC 2054 are different as in the cited case the driver of the vehicle was not responsible for the accident. She also submitted that the carrying capacity of the vehicle was 5+1 but at the time of accident, the vehicle was carrying 10 persons including driver and hence a presumption can be drawn that overloading had contributed to the accident. She further submitted that there was no deficiency of service on their behalf since as per the terms and conditions of the policy, when there is violation of policy conditions i. e. , carrying more than permitted capacity, the appellant company was not liable to indemnify the insured. The appellant submitted that they repudiated the claim on the ground that the vehicle was not permitted to carry more than 6 persons at the time of accident and this is in violation of the terms and conditions of the policy. The learned Counsel for the appellant contended that the facts reported in II (1996) CPJ 18 (SC)=i (1997) ACC 123 (SC)=air 1996 SC 2054 in B. V. Nagaraju v. M/s. Oriental Insurance Co. Ltd. Divisional Office, Hassan do not apply to the present case.

WE have gone through the material on record. The ownership of the vehicle by the respondent/complainant No. 1, the policy and the accident on 24. 3. 2006 are not in dispute and the appellant also admitted the expenditure incurred by the respondent/complainant for repairing the vehicle to an extent of Rs. 1,63,900. The respondent/complainant No. 1 purchased the vehicle under hire purchase system from the respondent/complainant No. 2 and filed Xerox copies of receipt and estimation for repairing the vehicle and also filed Xerox copy of driving licence of the driver. The contention of the learned Counsel for the appellant that the extra passengers have led to the cause of accident is not substantiated by any documentary evidence and, therefore, the judgment of the Apex Court in holding that: "carrying of unauthorised passengers by the driver or cleaner of the vehicle without the knowledge of the owner cannot be said to be a breach, unless it has contributed to the cause of accident. " is relevant to the present case. The learned Counsel for the appellant also relied on the decision of the National Commission in Oriental Insurance Co. Ltd. v. Pabindra Naryan Uzir, reported in IV (2006) CPJ 396 (NC) in which 60 passengers were carried in the insured vehicle instead of 6 but in the instant case, the vehicle carried only 4 extra passengers against the ceiling of 6. Therefore, the facts are not relevant to the instant case. The learned Counsel also relied on another decision of National Commission in Oriental Insurance Co. Ltd. v. N. Rajkumar, reported in II (2006) CPJ 175 (NC) in which it is stated that 35-40 passengers were travelling including some on roof of the bus and once again we reiterate that in the instant case only 4 extra passengers were travelling against the ceiling of 6 and, therefore, it cannot be construed that the extra passengers have led to the accident and this judgment is not relevant to the facts of the present case. In the charge sheet filed, it is stated that the accused, who is the driver of the jeep drove the vehicle in a rash and negligent manner with high speed and dashed against a telephone pole situated on the left side of the road because of which the passengers suffered grievous injuries including death of one of them. Therefore, it can be construed that the accident had occurred as the driver had driven the vehicle in a rash and negligent manner but not because of overloading of passengers and the driver also possessed a valid driving licence. For the negligence of the driver, the owner of the vehicle i. e. , respondent/complainant No. 1 cannot be made liable and the accident can occur even if one passenger is there if the driver drives the vehicle in a rash and negligent manner. The District Forum has rightly relied on the Surveyor''s final report and awarded the amount and we do not see any reason to interfere with this well considered order of the District Forum. In the result, the appeal fails and is accordingly dismissed. Time for compliance six weeks. Appeal dismissed.