PYARE HUSSAIN KHAN vs NEW INDIA ASSURANCE CO. LTD.

IN this appeal, by an unsuccessful complainant, the question involved as to whether the INsurance Company is liable to indemnify the insured even if the insured has contravened the specific terms and conditions of the INsurance Policy in carrying 53 passengers in a goods vehicle beyond the permissible limit. The complainant being the owner of the vehicle having registration No. BR-42G 0786 got the said vehicle insured with the respondent INsurance Company under Policy No. 3154090206425 which was effective from 11.4.2001 to 10.4.2002. On 29.6.2001 the said vehicle met with an accident on the G.T. Road. An F.I.R. was lodged with the police station and simultaneously the INsurance Company was also informed. The INsurance Company deputed its Surveyor who submitted his report on 7.11.2001. Subsequently, the claim was repudiated by the INsurance Company on 21.3.2002 on the ground of the insured having contravened the terms and conditions of the policy, resulting the filing of the complaint before the District Forum, claiming compensation of Rs. 1,99,886.50 which was spent for repairing the vehicle.

ON being noticed the opposite party Insurance Company appeared and filed its response, inter alia, challenging the maintainability of the proceeding mainly on the ground that the insured vehicle was being used in contravention of terms and conditions of the policy inasmuch as the insured goods vehicle was carrying as many as 53 passengers along with the loaded goods exceeding the permissible limit of six persons at the time of accident. After hearing the parties and on consideration of the materials on record, the District Forum has non-suited the petitioner with respect to the claim under the policy, in question. Admittedly, at the time of accident, as many as 53 passengers were being carried on the vehicle which is violation of the terms and conditions of the policy as well as the restrictions imposed regarding use of vehicle under the policy. One of the conditions of the policy was that insured is not liable to be indemnified if the vehicle is used for driving otherwise. The learned Counsel appearing on behalf of the appellant submits that even if 53 persons were travelling on the vehicle at the time of accident, the Insurance Company is still bound to indemnify the complainant and the repudiation of entire claim of the complainant is totally unjustified. Learned Counsel, in support of his contention, has relied upon an unreported judgment in the case of B.V. Nagaraju v. M/s. Oriental Insurance Co. Ltd., II (1996) CPJ 28 (SC)=Civil Appeal No. 6296/1995, decided on 20.5.1996.

In opposition, however, the learned Counsel appearing on behalf of the respondent Insurance Company submits that the limitation for use of insured vehicle is only for carrying the goods and not to use as passenger vehicle. In the instant case admittedly 53 passengers were travelling on the vehicle which is a clear violation of the terms and conditions of the policy including the restrictions imposed on use of such vehicle. In terms of the policy, only 6 persons are allowed on the vehicle along with goods whereas admittedly 53 passengers were being carried on the vehicle at the time of accident and as such, the Insurance Company is not liable to compensate the complainant on this ground alone.

IN the light of the submissions, we have considered the materials on record including the decision cited on behalf of the appellant, the decisions relied upon by the appellant will not help him for the reasons that in that case the accident was due to head-on collision with the truck wherein only 9 persons were on the vehicle at the time of accident whereas in the instant case because of the heavy load on the vehicle beyond permissible limit, the driver having lost his balance, as a result, the vehicle fell into ditch. Having regard to the discussions aforesaid and having further regard to the admitted facts of this case, the respondent Insurance Company has rightly repudiated the claim of the complainant. In the result, the appeal fails and is dismissed but in the facts and circumstances, there shall be no order as to cost. Appeal dismissed.