NEW INDIA ASSURANCE COMPANY LTD vs Subash Kumar Mittalresponden

BEING aggrieved against the orders dated 9.5.1997 in C. D. Case No. 4 of 1997 of the District Forum, Sundergarh -II, Rourkela, the Opp. Party in short the OP has filed this appeal against the complainant.

THE case in brief is that, the complainant/respondent who is the owner of the mini truck bearing Regd. No. ORE - 61, 1986 model, having chassis No. 357010903198 and engine No. 497SP21 84 -6102, used as goods transport, insured the said mini truck for Rs. 1,40,000 for the period from 20.2.1992 to 19.2.1993 with the OP/appellant vide policy No. 3155050110706, certificate No. 17472 dated 19.2.1992. The said vehicle was being driven by Akhil Ahmad having valid licence. The said truck met with an accident on 31.5.1992 at about 9 p.m. at Kumabahal near Rajgangpur while returning after unloading goods. In the accident the father of the respondent, Ram Kumar Mittal who was accompaning with the truck and Damodar Prasad Agarwal died at the spot and the cleaner of the truck received injuries. The respondent informed about the accident to the appellant and claimed Rs. 2,49,748.20 p. from him towards loss and repairing charge of the vehicle. The Surveyor Shri Panchanan Mishra gave his report assessing the loss in total loss basis Rs. 55,000. The appellant came to know after inquiry that said truck was carrying more passengers exceeding permissible number of 3 persons as per the Motor Vehicles Act when it was returning loaded with goods at Kubhartola. Out of said passengers, the father of the complainant Ram Kumar Mittal died at the spot and Damodar Prasad died at District Hospital and the driver and coolies also received injuries due to accident. The FIR lodged in the case and Surveyor''s report disclose about carrying number of passengers in the said truck at the time the truck met with accident. The appellant had also received notice from the Motor Accident Claims Tribunal for payment of compensation in respect to the deceased persons. In this end the view as the respondent has violated the policy condition in carrying passengers more than the permitted number, it repudiated the claim of the respondent. Therefore, the complainant filed the aforesaid C. D. Case claiming compensation towards loss. After adjudicating the dispute the District Forum allowed respondent''s case in part and directed the appellant to pay Rs. 1,40,000 within 30 days from the date of receipt of the copy of his order failing which to pay the same with 14% interest per annum and to pay compensation of Rs. 3,000 and cost of litigation Rs. 200 to the respondent.

THIS orders of the District Forum has been challenged by the appellant as illegal, arbitrary and against the weight of materials on record in respect to the fact that the truck which was registered to carry goods was carrying passengers in violation of the terms of the LIC policy at the time of accident.

WE heard learned Counsel for the appellant as none appeared for the respondent. We perused the xerox copies of documents filed in the case and the citation and notes thereon filed on behalf of the respondent on 28.3.2005. It was argued on behalf of the appellant that repudiation of claim of the respondent by the appellant is justified as the said vehicle registered as a goods vehicle, was carrying passengers in violation of the terms and conditions of the policy. In support of such argument the learned Counsel for the appellant has relied on a decision of the Karnataka State Consumer Disputes Redressal Commission, Bangalore reported in III (1995) CPJ 426. On the other hand it was submitted in writing on behalf of the respondent that no evidence is forthcoming that at the time of accident or regularly, said truck was carrying passengers for hire or reward. As the insurance company has not proved this, it cannot be absolved the liability of insurance claim. In support of this he has relied on decisions reported in 97 (2004) CON.LT at page 561 of our Hon''ble High Court decided on 30.1.2004 and 98 (2004) CON.LT 3 (OSC) of this Commission decided on 31.10.2003. It has been held in both the decisions that as because some people were traveling in the vehicle at the time of accident, presumption can''t be drawn that said people were being carried as passengers on hire or reward basis. It is to be proved that the said people were being carried in the vehicle on payment of charge in order to establish that the vehicle was carrying passengers. At the same time, it is to be ascertained as to whether the said passenger is owner of the goods or an employee of the owner of the truck who can''t be treated as hired passengers.

NOW the question arises as to whether at the time of said accident the truck in question was carrying passengers though it was registered for carrying goods only.

AS per the report of the Village Guard through the FIR and the report of the Surveyor, 6 persons were travelling in the truck at the time of accident. The respondent vide his letter dated 2.6.1992 has written to the Manager of New India Insurance Company Limited, Uditnagar, Rourkela that two persons who were bodily injured in the accident, succumbed to injuries and the driver and the cleaner were injured in the accident. He does not disclose the identity of the deceased whereas the Surveyor''s report discloses their names out of whom deceased Ram Kumar Mittal is the father of the respondent. According to the Surveyor he ascertained such facts from the insured. But his information in respect to travelling of 6 passengers at the time of accident is contradictory to such information as per the aforesaid letter dated 2.6.1992 of the respondent. The report under FIR does not disclose names and identity of said 6 persons. No evidence has been adduced from the side of the appellant that said 6 persons were being carried in the said truck on payment of hire charges. Even, the appellant has not given their identity whereas the driver of the truck has sworn in an affidavit that no passengers except the father of the owner of the truck and the cleaner Damu Agarwal who also died, were there at the time of accident and some persons who were present at the footpath had sustained injuries in the accident. FIR does not disclose that all these 6 persons were being carried in the said truck as passengers on hire basis. No such persons, except the deads, have been testified in respect to travelling in said truck on payment of price. The appellant has thus repudiated the claim of the respondent in absence of any evidence that said truck met with accident while carrying passengers on hire. In this end of the view the repudiation of the claim of the respondent by the appellant for violation of the policy condition is unjustified as respondent has not contravened the terms and conditions of the policy in allowing said truck to carry passengers on hire at the time of accident. Therefore, the aforesaid orders of the District Forum being absolutely justified needs no interference. In the result, the appeal is dismissed on contest without cost. Mr. Subash Mahatab, Member -I agree. Appeal dismissed.