ORDER (Per: Justice Irshad Hussain) This is insurer’s appeal against the order dated 07.10.2005 passed by the District Consumer Forum, Almora in complaint No. 24/05, Shri Meharbaan Singh V/S National Insurance Co. Ltd. 2. Complainant’s passenger vehicle Mahindra Jeep having seating capacity of six excluding the driver met with an accident during the period of insurance. It turned out be case of total loss. Claim preferred was not allowed by the insurance company on the ground that at the time of the accident twenty three passengers were traveling in the vehicle and as such the insured had violated the terms and conditions of the policy. The District Forum referred to the copy of the general diary of the police to indicate that nineteen persons died in this accident and few others received injuries while adverting to the contentions of the insurer that twenty three persons were travelling in the vehicle as against permitted capacity of seven in all. The District Forum, however, observed that in the absence of the affidavit of the surveyor the contention of the insurer does not stand proved and thus held that the insurer made deficiency in service in repudiating the claim. The complaint was therefore partly allowed by the impugned order directing the insurer to pay compensation of Rs. 2,52,000.00 for loss of vehicle; Rs. 5,000.00 by way of damages and Rs. 500.00 as cost within the time stipulated failing which the total amount of Rs. 2,57,000,00 was directed to carry interest @ 9% per annum from the date of the order till payment. 3. Submission of the learned counsel appearing on the behalf of the parties may be divided into following points for determination of appeal:- (1) Whether the insured had violated the terms and condition of the policy and the insurer is not liable to make the payment of the compensation and the District Forum returned an incorrect finding. (2) Whether the compensation award is excessive. Point No. 1: Registration certificate (Paper no. 68) indicate that the permitted seating capacity of this passenger vehicle was seven in all. Insurance policy (Paper no. 58) prescribed limitation as to use of this passenger vehicle as under:- “The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or as such a carriage falling under sub-section–3 of section–66 of Motor Vehicles Act, 1988”. 4. Insurance policy (Paper no. 58) prescribed limitation as to use of this passenger vehicle as under:- “The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or as such a carriage falling under sub-section–3 of section–66 of Motor Vehicles Act, 1988”. 4. From above limitation as to the use of the insured vehicle it is obvious that the benefit under the policy shall be available to the insured only if the vehicle is used in the manner and for the purpose for which its permit had been issued by the authority concerned under the Motor Vehicle Act. Since the permit provided carrying of seven persons in all including the driver the schedule of the premium (Page-59 of the policy) indicate that the premium was paid in regard to six passengers plus one employee to whom the provisions of the Work-men’s Compensation Act were applicable. The schedule thus also conform that the maximum permitted capacity including the driver was seven only and the premium was accordingly paid for coverage of risk to the life apart from the damage to the vehicle. 5. Referring to the above limitations as to use of the vehicle the policy of insurance was issued. Learned counsel appearing on the behalf of insurer-appellant submitted that at the time of the accident twenty three passengers were travelling in the vehicle out of which nineteen died and rest of the passengers sustained injuries and in view of the violation of the terms of the insurance policy the complainant was not entitled to any compensation and the District Forum fell in error in rejecting such contention merely on the ground that the affidavit of the surveyor of the insurer had not been filed. In support of the argument learned counsel placed reliance on the latest decision of the National Commission in the matter of National Insurance Co. Ltd. & Anr. Vs Suresh Babu & Anr; I (2007) CPJ 23 (NC). Having carefully considered the submission in the light of legal aspects of the case, we see merit in it. The reasons being that the copy of general diary report also referred in the order of the District Forum indicated that in the accident of the vehicle nineteen persons died and few others were injured. Having carefully considered the submission in the light of legal aspects of the case, we see merit in it. The reasons being that the copy of general diary report also referred in the order of the District Forum indicated that in the accident of the vehicle nineteen persons died and few others were injured. Copy of the general diary report and copy of the case dairy (Paper numbers 89 to 99) filed by the appellant also affirm this fact. The police papers being public documents are admissible piece of evidence and these supported the stand taken by the insurer. If the affidavit of the surveyor was not filed before the District Forum adverse inference could not have been taken by the District Forum. Even otherwise, the affidavit of Shri B.C. Pandey, Regional Manager of insurance company was filed on record in proof of the defence pleas and in a situation like this it was legally incorrect on the part of the District Forum to infer that the insurer had failed to prove that the terms of the insurance policy have been violated in carrying the twenty three passengers against permitted capacity of seven persons in all at the time of the accident. 6. Learned counsel for the complainant urged that the evidence on record indicate that large numbers of persons who have died were by-standers who have assembled on the road-side and when the driver of the vehicle lost control these persons also fell down in the gorge and sustained fatal injuries. Learned counsel drew attention to the statement of the witness Shri Gulab Ram recorded in Motor Accident Claim Petition No. 34/04 before the Motor Accident Claim Tribunal / District Judge, Almora (Paper no. 63) in support of the claim filed by the legal representative of two persons who have died in the accident. This witness stated that at the time of the accident only six passengers were travelling in the vehicle in question. We are not inclined to believe that in the accident more than nineteen persons fell from the road into the gorge with the vehicle in question and lost their live. The large number of casualities admit of only one inference that more than twenty three passengers were traveling in the vehicle at the time of the accident and this fact came to be so recorded by the independent police agency on investigation of the incident. The large number of casualities admit of only one inference that more than twenty three passengers were traveling in the vehicle at the time of the accident and this fact came to be so recorded by the independent police agency on investigation of the incident. It also need to be stated that the insurance company also appointed its own investigator Shri Harak Singh Mehra, a retired sub-inspector of police in connection with the claim preferred before Work-men’s Compensation Commissioner in regard to the death of the driver in the accident. It was case number 7024/02 of 2004-05 and said investigator submitted his detailed report dated 06.08.2005 (Paper numbers 77 to 88) filed on record of the appeal by the appellant also support the entries of the police general diary that more than nineteen passengers of the vehicle died in the accident and others sustained injuries. Therefore, the submission of the learned counsel for the complainant is not sustainable and it can not be accepted that at the time of the accident only six passengers were travelling in the vehicle in question. Rather the material on record is sufficient to establish that more than twenty three passengers were travelling out of whom nineteen died and others received injuries. It was a case of flagrant violation of the terms of the insurance policy and it was a case of accident on account of overloading or carrying more than twenty three passengers against permitted capacity of six passengers only excluding the driver. The National Commission in the above reported case has held that in the event of gross violation of the terms of the policy and the provisions of the law the repudiation of the claim is justified. The decision of the Hon’ble Supreme Court : B.V. Nagaraju v/s Oriental Insurance Company Ltd., II (1996) CPJ 28 (SC)=I, was distinguished in view of the fact that in the case before the Hon’ble Supreme Court only two to three more passengers were carried in the goods vehicle. On the other hand in the case before the National Commission, thirty five to thirty six passengers were carried against permitted seating capacity of 19 passengers and there being gross violation of the terms of the policy and provisions of the law, no deficiency in service in denying the claim of the complainant was found. On the other hand in the case before the National Commission, thirty five to thirty six passengers were carried against permitted seating capacity of 19 passengers and there being gross violation of the terms of the policy and provisions of the law, no deficiency in service in denying the claim of the complainant was found. The ratio of the reported decision apply squarely to the facts of instant case and it is accordingly held that the insurer was justified in repudiating the claim of the complainant. The findings to the contrary recorded by the District Forum is incorrect and erroneous and the same is liable to be set aside. Point is answered accordingly. Point No. 2 : In view of above finding and answer to the point number 1, the question as to the sufficiency of the compensation becomes redundant. Even otherwise the quantum of compensation has not been assailed at the time of the argument in the appeal. Point is answered accordingly. 7. In view of the aforesaid finding the complainant was not entitled to any compensation and his complaint is liable to be dismissed. Appeal therefore, succeeds and is allowed accordingly. Order dated 07.10.2005 of the District Forum is set-aside and the consumer complaint 24/05 is dismissed. Costs made easy.