ORIENTAL INSURANCE COMPANY vs Vijay Kumar Gupta

THIS is an appeal by the Oriental Insurance Company against the majority judgment given by District Forum, Tehri whereby the two Members allowed the complaint and directed the Insurance Company to pay a sum of Rs. 1,35,000/- as compensation for the insured vehicle.

THE brief facts of the case are that the complainant Vijay Kumar Gupta was the owner of the truck which was insured with the appellant. During the insurance period, it fell in the Khad and was damaged. Information was given to the Insurance Company but the claim was not paid. Hence, the complaint was filed. The opposite party contested the petition and alleged the insurance, also admitted the accident. But it was alleged that at the time of the accident, there were 4 passengers in the truck whereas the truck was insured only for carrying goods. Thus, the breach of the terms of the policy has been committed. Therefore, the complainant is not entitled to any compensation. It was, further alleged that there was no valid registration and fitness certificate and driving licence of the driver.

After the evidence of the parties, two Members, Smt. Sushma Uniyal and Shri Bharat Singh Negi gave a separate judgment and ordered that appellant should pay a compensation of Rs. 1,35,000/- along with cost of litigation amounting to Rs. 3,000/-. However, the learned President Shri K.P. Nigam did not agree with their finding and gave a separate judgment holding all the objections of the Insurance Company as correct.

WE have examined both the judgments and gone through the records. WE are happy that the Members who are not experts in law and writing judgments have given correct judgments. The claim has been repudiated on 3 grounds. Firstly, there were four passengers in the truck besides driver and cleaner. The learned President did not give any finding what was the effect if there were 4 passengers, but the Members have given a finding that from the registration certificate, it is, itself, clear that the vehicle was authorised to carry 7 persons in all. This means that the vehicle was entitled to carry 7 persons including the driver and cleaner. In the policy, it is provided that it was entitled to carry only goods. It was not entitled to carry any passengers. According to the parties, the accident took place as the vehicle rolled down in a Khad. It is admitted case that there was no goods in the truck and merely by sitting 3 or 4 passengers, the truck could not have been rolled in the Khad. There is no nexus of accident with the sitting of 4 extra passengers. It is settled principle of law that if there was no nexus and if there was some passengers, then also the claimant is entitled to compensation and in that case only on non-standard basis, compensation could have been granted to the claimant. The learned Counsel for the claimant referred the ruling reported in II (1996) CPJ 28 (SC), B.V. Nagaraju v. Oriental Insurance Company Ltd. In this ruling, the insured vehicle was entitled to carry 6 workmen including the driver, but, it was carrying 9 passengers. It met with an accident. The complainant lodged a complaint for damage to the vehicle. Objection was raised that carrying of 9 passengers is breach of policy, therefore, the claimant is not entitled to any compensation for the damage of the vehicle. In this ruling, it was held that : "The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, barely noticed and rejected sansany plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia''s case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is, indemnify the damage caused to the vehicle, which we hereby do."

It was again held in the ruling : "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."

THE same view has been propounded in the ruling reported in I (2003) CPJ 92 (NC), Oriental Insurance Co. Ltd. v. Ram Kumar Gupta, and it was held in this ruling given by the National Commission that where 13 persons were sitting and the truck was entitled to carry only 5 persons, it was held that six more persons in the truck had no effect on the accident and the accident was not caused on account of carrying excess passengers. In this ruling also the claim was filed for the damage in the truck, a goods vehicle. Against these rulings, the learned Counsel for the Insurance Company referred the ruling reported in AIR 2003 Supreme Court 1009, Oriental Insurance Company v. Devireddy Konda Reddy with Oriental Insurance Company Ltd. v. Jogi Subbamma. In this ruling, certain persons were travelling in goods vehicle. The vehicle was insured. The vehicle met with an accident, resulting in death of several persons who were either unauthorized or gratuitous passengers in the said vehicle. Their legal representative lodged a claim under Motor Vehicles Act. It was held by the Hon''ble Supreme Court that a goods vehicle was not entitled to carry passengers and those passengers are unauthorized or gratuitous passengers, therefore, they are not entitled to compensation under the Motor Vehicles Act. The facts of the present case are totally dis-similar with the facts of the present ruling. In this case, the extra passengers sitting in the truck did not lodge any claim but the claim was lodged by the owner of the vehicle for damage to the vehicle. Had this claim been lodged by those passengers, they might not have got compensation but so is not the case with the damage to the vehicle where sitting of extra passengers did not contribute, in any way, with accident. Even otherwise on facts, we have already held that in this case, the permit itself has indicated that the vehicle was entitled to carry 7 passengers including the driver and cleaner and there were not more than 7 passengers in the vehicle. On facts, there is no need of these rulings. These are relevant only for academic interest.

SECONDLY, the claim was rejected on the ground that there was no fitness certificate. Certificate of Fitness has been filed before us and the vehicle was fit to be driven between 3.8.1994 to 2.8.1995. The accident took place on 20.10.1994. The fitness certificate was filed. On the third ground on which the claim was repudiated is that the driver has got no valid driving licence. The copy of the driving licence has also been filed. It was endorsed for light goods vehicle on 7.8.1994 and it was renewed from 7.8.1994 to 6.8.1997 on 7.8.1994, itself. It is admitted case that Mansa Prasad was driving the vehicle. It is proved that he has got valid driving licence on the date of the accident. The Surveyor has also reported that it was Shri Mansa Prasad who was driving the vehicle at the time of the accident. It does not appear why the learned President did not discuss these papers of fitness certificate, driving licence and the registration certificate whereas all these papers have been discussed by the learned Members. We are fully satisfied with the majority judgment. We do not find any mistake in the judgment pronounced by the majority Members. The appeal is accordingly to be dismissed. ORDER The appeal is hereby dismissed. The majority judgment is hereby approved. The finding recorded by the learned President is hereby quashed. The appellant is directed to comply with the orders of the Forum. However, in the circumstances of the case, cost of this appeal shall be easy. Appeal dismissed.