Oriental Insurance Co. Ltd. vs KAMALESH KUMAR CHANDRAKAR

THIS is an appeal filed by the appellant-opposite partyInsurance Company against the order dated 5.12.1996 passed by the District Forum, Raipur in case No. 554/96 whereby, the opposite party has been ordered to pay within two months a sum of Rs. 20,000/- to the complainant as compensation for deficiency in service on the part of the opposite party-appellant.

IT is not disputed that the complainant is the owner of the Jeep which was damaged in an accident which occurred near village Chichola on 18.3.1995 on its way back from Balaghat to Raipur. The accident occurred during the period of insurance. The claimant submitted claim on 28.3.1995 of Rs. 38,905/- for compensation on respect of the repairs for the Jeep, which was damaged in the accident. The Insurance Company-opposite party repudiated the claim of the complainant on 6.12.1995 on the ground that the Jeep was meant for personal use and was put to commercial use at the time of accident and as such the complainant contravened the conditions of the insurance policy and, therefore, repudiation of the claim did not amount to deficiency in service on the part of the opposite party Insurance Company. IT was alleged by the opposite party that the Jeep was allowed to be taken to Balaghat from Raipur by the owner of the Jeep complainant on payment of rent of Rs. 1400/-. This allegation was made on the basis of Surveyor''s report who inquired from two persons Rahim and Sanjay Devangan who informed that they travelled as passengers from Raipur to Balaghat. The District Forum has rejected the plea of breach of conditions raised by the opposite party-Insurance Company holding that even if it be assumed that the persons who travelled in the Jeep had paid the amount to the owner or the driver, this alone cannot be the basis for an inference that the Jeep was being used as a taxi. It has not been proved by the opposite party that the Jeep in question was being used as a regular taxi so as to constitute breach of condition. The District Forum has relied upon a decision of Madhya Pradesh High Court, (Gwalior Bench) in the case of New India Insurance Company Limited v. Bajat Bai & Ors; reported in 1996 ACJ 336 in support of the view that the burden of proof was on the Insurance Company to prove that the Jeep in question was being used as a regular taxi in breach of the terms and conditions of the policy so as to exempt it from liability to pay compensation in respect of the accidented Jeep. We are also of the opinion that the exclusion clause stipulated by the Insurance Company must be proved on facts conclusively by the Insurance Company which has not been done in the instant case.

Learned Counsel for the appellant-Insurance Company has placed reliance on a decision of the High Court of Madhya Pradesh in the case of Shankar Prasad v. Smt. Maiti Devi & Ors; M.A. No. 949/96. But this case cited by the appellant is distinguishable on facts and is of no help to the opposite party. In that case, reference has also been made to the "main purpose rule" which limits the application of wide exclusion clauses defining a promisor''s contractual obligation and further reliance has been placed on the observation of House of Lords in the case of Suissee Atlantique, (1967) 1 AC 361 that wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose or object of the contract. The case of Skandia Insurance Co. Ltd., AIR 1987 SC 1184, has also been relied upon in that case for reading down the contractual clause in the light of the main purpose of the provision. The aforesaid discussion contained in the decision cited by the learned Counsel for the appellant is in fact favourable to the insured and not to the insurer-opposite party.

IN view of the discussion aforesaid, we are of the opinion that the order of the District Forum is justified and is hereby affirmed. The appeal is dismissed with cost. Counsel fee which is fixed at Rs. 300/-. Appeal dismissed with costs.