SHAKEEL AHMED vs NATIONAL INSURANCE CO LTD

THE complainant/petitioner, owner of vehicle No. UK04 -CA -2661 (Mahindra Max Pick -UP), got the said vehicle insured with the respondent National Insurance Company Limited for the period from 27.02.2011 to 26.02.2011. During the subsistence of the policy, the vehicle met with accident on 09.08.2011 when it was going from Kaladhungi to Rampur. On a claim being lodged with the Insurance Company, a surveyor was appointed, who assessed the loss to the complainant at Rs. 1,25,236/ -. The claim, however, was repudiated by the Insurance Company on the ground that though the vehicle was registered as a goods vehicle with sitting capacity of 3 persons including driver, it was empty and was carrying 8 persons including driver, at the time it met with the accident, thereby committing breach of the terms and conditions of the policy.

BEING aggrieved from the rejection of the claim, the petitioner/complainant approached the concerned District Forum by way of a complaint. The complaint was resisted by the insurance company on the same ground on which the claim had been rejected. Vide order dated 27.02.2013, the District Forum allowed the complaint and directed the insurance company to pay a sum of Rs. 1,25,236/ - to the complainant, alongwith compensation amounting to Rs. 10,000/ - and cost of litigation amounting to Rs. 5,000/ -.

BEING aggrieved from the order passed by the District Forum, the Insurance Company approached the concerned State Commission by way of an appeal. Vide impugned order dated 26.11.2014, the State Commission noticing that though the vehicle was registered for carrying goods from one place to another but was being used to carry 8 passengers, allowed the appeal and dismissed the complaint. Being aggrieved from dismissal of his complaint, the complainant is before this Commission by way of this revision petition. It is not in dispute that the vehicle in question was registered as a vehicle for carrying goods from one place to another. A perusal of the FIR would show that at the time the vehicle met with an accident, no goods were carried by it and only 7 persons including the driver of the vehicle, were travelling in it. When a vehicle is found carrying only passengers with no goods loaded in it, the inevitable inference is that it was being used as a passenger vehicle and not as a goods vehicle. Such a use of the vehicle would be contrary to the terms and conditions on which it is registered and, therefore, entitle an insurance company to repudiate the claim, irrespective of whether the carrying of the passengers by itself leads to the accident or not. Once it is found that the vehicle was being used predominantly for carrying passengers despite its being authorised to carry only goods, it would be a clear -cut breach of the terms and conditions on which the insurance policy is issued and consequently the insurance company would be entitled to repudiate the claim on account of the aforesaid breach.

THE learned counsel for the complainant/petitioner relies upon the decision of the Hon''ble Supreme Court in B. V. Nagaraju vs. Oriental Insurance Company Ltd., 1996 4 SCC 647, whereas the learned counsel for the respondent relies upon the subsequent decision of the Hon''ble Apex Court in National Insurance Company Ltd. vs. Savitri Devi and Ors., 2013 11 SCC 554. A perusal of the decision of the Hon''ble Apex court in B.V. Nagaraju would show that at the time the vehicle met with an accident, it was carrying not only 9 persons including the driver of the vehicle but also the goods belonging to the persons who were travelling in the vehicle. The fact that the vehicle was carrying only the goods and the owners of those goods clearly shows that primarily it was being used as a goods carrying vehicle and not as a passenger vehicle. The learned counsel for the petitioner draws my attention to para 7 of the decision whether the Hon''ble Apex Court interalia observed that the workmen who were travelling in the vehicle are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident and therefore, they could not have contributed to the causing of the accident. It was also noticed by the Hon''ble Apex Court that it was not the case of anybody that the driver was responsible for the accident. In Savitri Devi it was found that a barat was being carried in the vehicle which had been registered as a goods vehicle. Allowing the appeal filed by the Insurance Company, the Hon''ble Apex Court interalia noted that the Insurance Company would not know unless the accident takes place as to what purpose the vehicle in question was being used. It was further observed that the terms and conditions of the policy were clear and categorical and created a specific bar on carrying the passenger except the employees other than the persons not exceeding 6 in number. It would thus be seen that in Savitri Devi , only passengers were found travelling in the vehicle at the time it met with an accident, whereas in B.V. Nagaraju , goods were also found loaded in the vehicle and the passengers travelling in the said vehicles were none other than the owners of those goods. Therefore, in Savitri Devi , the complainant was being used predominantly for carrying passengers at the time it met with an accident whereas it was being used primarily for carrying goods in B.V. Nagaraju when it met with the accident.

IN the case before this Commission, since no goods were found loaded in the vehicle at the time it met with an accident, it is quite obvious that it was being used predominantly as a passenger vehicle at the time it met with an accident. Had it been used primarily for carrying goods and the carrying of the passengers been only incidental as was the position in B.V. Nagaraju , there would have been no justification for altogether rejection of the claim and the Insurance Company would have been obliged to settle the claim on non -standard basis. But, considering that the vehicle in question was being used only for carrying passengers at the time it met with an accident, the decision of the Hon''ble Supreme Court in Savitri Devi becomes directly applicable.

FOR the reasons stated hereinabove, I do not find any merit in the revision petition. Consequently, the revision petition is dismissed.