P.PALANISWAMY vs Oriental Insurance Co. Ltd.

IN this complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986, the Complainant has sought compensation in a sum of Rs. 3,00,000/- from the Opp. Party M/s. Oriental INsurance Company.

THE Complainant had insured his vehicle bearing Registration No. KA-01-1076 with the Opp. Party for a period of one year commencing from 30.1.1992 to 29.1.1993. THE insured amount was a sum of Rs. 2,20,000/-. The said vehicle during the currency of the policy, met with an accident on 30th March, 1992. It sustained serious damages in the said occurrence.

The Complainant filed claim petition with the Opp. Party. The Opp. Party after its examination and scrutiny by its letter dated 1.2.1993 repudiated the claim of the Complainant on the ground that the passengers were travelling in the said goods vehicle at the time of the accident. The Complainant averred that the said plea taken by the Opp. Party, Insurance Company was untenable. So he filed this complaint claiming compensation in a sum of Rs. 3,00,000/-.

THE Opp. Party filed its version admitting the fact that the vehicle of the Complainant, a goods vehicle, was insured with it as averred by the Complainant. THE Opp. Party further averred that at the time of the accident, number of passengers were travelling in the said vehicle in violation of the terms and conditions of the policy and so the claim of the Complainant was repudiated. On the basis of these averments, the Opp. Party submitted that there was no deficiency in service on their part and the claim of the Complainant was liable to be rejected.

DURING enquiry the parties filed their affidavits. The documents filed by the Opp. Party came to be marked as Exs. R. 1 to R. 10. We heard the learned Counsel for the parties. Perused the pleadings and the material on record by the parties. Ex. R.1 is the Policy of Insurance in question. It shows that the vehicle insured was a goods carrying vehicle. This fact is not disputed by the Complainant.

THE limitations as to use of the said vehicle, referred to in the policy of insurance, Ex. R.1 reads as under: "Only for the carriage of goods within the meaning of the Motor Vehicles Act, 1988."

EX. R. 10 is the copy of the F.I.R. It shows that at the time of the accident in the said vehicle number of people were travelling, 22 persons had sustained the injuries in the said accident. This fact is also not disputed by the complainant. The complainant in his affidavit at Para 9, has averred thus: "9. I submit that if the passengers had travelled in the vehicle, the liability of the company in so far as it pertains to the death or injury pertaining to the persons travelling in the vehicle (goods vehicle) is a separate question and the insurer will have a right to repudiate such third party claims. However, insofar as the own damage claims are concerned, such grounds are not tenable as the carrying of passengers etc. not contribute to accident and as long as the damage has been caused by the violent, visible external means the same become payable under the terms of the policy."

It is clear from these facts and circumstances, referred to above, that at the time of the accident, in the said vehicle number of passengers were travelling and the said vehicle was being used for carrying passengers.

THE National Commission in First Appeal No. 439 of 1993 in M/s. Oriental Insurance Co. Ltd. v. B.V. Nagaraju, decided on 30th November, 1994, observed thus: "In our opinion Counsel appearing for the appellant is well founded in his contention that in the light of the admitted fact that the goods vehicle in question was carrying 9 persons as passengers at the time of occurrence of the accident in question, the exclusion Clause No. (3) contained in the policy under the heading "Limitation as to use" which states that "the policy does not cover use for carrying passengers in the vehicle except employees (other than driver) not exceeding 6 in numbers coming under the purview of the Workmen''s Compensation Act", is clearly attracted to this case and the liability of Insurer is excluded. We are unable to share the view taken by the State Commission that the factum of passengers having been wrongfully carried in the vehicle could become relevant only if it had in any manner contributed to the occurrence of the accident. THE express stipulations contained in the contract of insurance has to govern the rights and liabilities of the parties and in view of Exclusion Clause No. 3 extracted above the Insurance Co. is absolved of liability in respect of the loss sustained by the owner of the vehicle when the goods vehicle had been wrongfully used for carrying passengers. THE order of the State Commission is accordingly set aside and the complaint petition filed against the Insurer by the herein is hereby dismissed. No costs."

It is clear from the decision of the National Commission, referred above, that if the goods vehicle were to be used wrongfully for carrying passengers the Insurance Company is absolved of its liability in respect of the loss sustained by the owner of the vehicle.

HAVING regard to this principle, in view, in the present case, the complainant had used the goods vehicle at the time of the accident for carrying passengers in violation of the terms and conditions of the policy. So having regard to these facts, the repudiation of the claim of the complainant by the Insurance Company cannot be classified as deficiency in service. So the claim of the complainant is untenable. In the result, therefore, this complaint fails and it is dismissed. The parties are directed to pay and bear their own costs. Complaint dismissed.