United India Insurance Company Limited vs LEELA RAMCHANDRA VARSALE

THIS appeal by the Insurance Company is directed against the order of the District Forum, Buldana in Complaint No. 27/97 directing the Insurance Company to pay Rs. 1,85,000/- to the respondent/ complainant. There is also order regarding payment of cost, etc.

THE main contention of the Insurance Company is that the Tempo Trax involved in the accident, was used for carrying passengers and there was breach of the terms of the insurance policy. The few facts are that the complainant purchased new Tempo Trax Vehicle No. MH-28- 6764 for Rs. 2,38,000/- on 30.8.1993. The said tempo vehicle was insured with the appellant- Insurance Company for the period from 30.8.1993 to 31.8.1994. The said vehicle met with accident from 28.3.1994 at Kelwad, District Nagpur. The F.I.R. was registered and the claim was preferred with the appellant-Insurance Company. The appellant-Insurance Company repudiated the claim on 8.2.1996 intimating that there was breach committed by the insured with respect to policy condition.

The F.I.R. lodged with the Police Station indicated that the driver had carried some persons. But the Insurance Company failed to prove that they were paid passengers. Even the F.I.R. did not indicate specifically to that effect. Under the law, it is the bounden duty of the Insurance Company to establish that the insured had committed breach of policy condition. The vehicle is a passenger vehicle and, therefore, the presence of persons in the vehicle would not tantamount to breach of policy condition. The onus was on the Insurance Company to establish to that effect. The Insurance Company called upon the complainant to furnish the names of the persons present in the vehicle at the time of the accident. Failure on the part of the complainant to furnish these particulars has been taken by the Insurance Company as the breach of policy condition. The Insurance Company concluded that the passengers were paid passengers. We are afraid that in absence of any documentary evidence to that effect, such a conclusion cannot be drawn. The. District Forum at length, has discussed all these aspects. The Insurance Company cannot invoke of the exclusionary clause in that regard and we hold that the Insurance Company is liable to pay for the damages.

THE District Forum has discussed the report of the Assessor Mr. H.S. Lamba and also the final survey report by Shri G.R. Patil. In the extensive report by Shri G.R. Patil, the damage has been assessed at Rs. 3,23,348.16 Ps. but 50% has been deducted by way of depreciation. We believe that such a huge deduction is not warranted because the vehicle was new and the accident has taken place within a period of less than 1 month. THE District Forum has rightly considered the question of depreciation and has rightly arrived at on the appropriate figure about the compensation. The question of jurisdiction need no consideration because the vehicle was insured with the United India Insurance Company, Khamgaon Branch. We, therefore, feel that the award of compensation passed by the District Forum calls for no interference. Accordingly, the appeal is dismissed. No order as to costs. Appeal dismissed.