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2007 DIGILAW 285 (UTT)

UNITED INDIA INSURANCE CO. v. PANKAJ SINGH

2007-05-21

IRSHAD HUSSAIN, LAXMI SINGH

body2007
ORDER (Per : Mr. Justice Irshad Hussain, President) : This is insurer’s appeal against the order dated 21.05.2005 passed by the District Consumer Forum, Nainital in consumer complaint no. 373/03, whereby the complaint was partly allowed directing the insurer to pay compensation of Rs. 2,75,000.00 together with interest @ 9% per annum; Rs. 2,000.00 as damages for mental agony and suffering and Rs. 1,500.00 as litigation expenses. 2. Complainant’s vehicle a Mahindra and Mahindra Jeep having tourist taxi permit and carrying capacity of six persons in all met with an accident during the period of insurance on 27-08-2002 at about 06:00 A.M near village Dhon on Tanakpur- Pithoragarh road. At the time of the accident good number of passengers were travelling in it and out of those two died and others including the driver sustained injuries and were admitted in primary health center, Champawat for medical treatment. Although in the complaint number of passengers has been alleged as seven only, but the evidence on record and the police investigation confirmed that twelve passengers and one driver were in the jeep at the time of the accident. The complainant made inconsistent claim in the claim form (Paper no. 18 to 19) that there were only five passengers in the jeep at the time of the accident. The District Forum on appraisal of the evidence held that at the time of the accident there were 13 persons travelling in it although permit capacity of the vehicle was only six including driver as is evident from certificate of registration (Paper no. 35). The District Forum however observed that the accident occurred on account of the nut of the tie road end went off and that overloading of the vehicle was not the cause of the accident. 3. Learned counsel for the insurer persuasively argued that the view taken by the District Forum is erroneous and that the accident took place on account of overloading of the vehicle and that being the cause of the accident there was flagrant violation of the terms of the policy in view of breach of the provisions of the Motor Vehicles Act and rules and the claim preferred by the insured-complainant was rightly repudiated. Learned counsel placed reliance on the latest decision of Hon’ble National Commission in the matter of National Insurance Co. Ltd. & Anr. Vs Suresh Babu & Anr.; I (2007) CPJ 23 (NC). Learned counsel placed reliance on the latest decision of Hon’ble National Commission in the matter of National Insurance Co. Ltd. & Anr. Vs Suresh Babu & Anr.; I (2007) CPJ 23 (NC). On the other hand learned counsel for the complainant supported the decision of the District Forum by submitting that the accident took place due to technical fault and overloading of the vehicle has nothing to do with it. According to him the District Forum rightly held that insurer made deficiency in service in repudiating the claim, on the ground that at the time of the accident 13 persons were travelling in the jeep and this was against the terms and conditions of the policy. Learned counsel pressed into service the reported decision of the Hon’ble Apex Court in the case of B.V. Nagaraju vs Oriental Insurance Co. Ltd.; II (1996) CPJ 28 (SC). 4. Having carefully considered the submissions in the light of the facts of the case and legal aspects of the matter in issue, we may state at the out-set that the arguments advanced by the learned counsel for the insurer are sustainable and finding recorded by the District Forum stand assailed. 5. The reasons are that the fact that at the time of the accident twelve passengers excluding the driver were traveling in the jeep having being established there was every possibility that the tie road got detached from the tie end due to overloading and it caused the accident of the vehicle. In other words the overloading was the result of accident. Even otherwise the report of the Junior Foreman of workshop of Uttar Pradesh Roadways Transport Corporation Lohaghat referred in the order of the District Forum could not have been taken to draw an inference that the nut of the tie road went off prior to the accident and as a result thereof it went out of control and fell deep into a gorge. There was every possibility of the nut getting removed or untied when the vehicle started falling and went down in to a gorge with force. Therefore, in all probability the accident was the result of overloading due to which the driver failed to maintain control at the steering and jeep feel into a gorge. There was every possibility of the nut getting removed or untied when the vehicle started falling and went down in to a gorge with force. Therefore, in all probability the accident was the result of overloading due to which the driver failed to maintain control at the steering and jeep feel into a gorge. It is of significance that at the time of the accident there were persons in it more that double the permit capacity of six persons in all including the driver. 6. In the face of the facts of the case the insured can not derive any benefit from the judgment dated 01.09.2004 (Paper no.s 84 to 87) delivered by the Hon’ble Uttarakhand High Court in the matter of the Motor Accident Claim arising out of this accident. It was observed that no evidence on the point of overloading had been laid by the appellant-insurance company before the tribunal. The evidence in the consumer complaint case fully established that there were 13 persons in the vehicle at the time of the accident. There is no finding in the accident claim case that the jeep was not carrying twelve passengers excluding the driver at the time of the accident. We may also refer here to the police investigation paper numbers 51 to 53 which clearly point out, with names of passengers, that there were twelve passengers excluding the driver in the jeep at the time of the accident. As stated earlier the complainant himself made inconsistent averment in regard to the number of passengers which prove falsity of his averment in that regard. Therefore, the District Forum had rightly held that there were 13 persons in the vehicle at the time of the accident as against permit capacity of six in all. 7. The above facts an circumstances of the case clearly militate against the other finding of the District Forum and these in turn lead to an inference that the accident took place on account of overloading of the vehicle which was carrying passengers and the driver 13 in all, as against capacity of six only. 8. In view of above findings it is obvious that the vehicle was being plied in flagrant violation of the terms of the insurance policy (Paper no. 8. In view of above findings it is obvious that the vehicle was being plied in flagrant violation of the terms of the insurance policy (Paper no. 44 to 45) which incorporate the limitation as to its use as under: “The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub-section-3 of section-66 of the Motor Vehicles Act, 1988” 9. The permit issued under the Motor Vehicles Act (Paper no. 40) clearly mention that the seating capacity of the vehicle was six in all. At the time of the accident persons more than double the seating capacity were in the vehicle and as such the breach of the terms of the policy has been with regard to limitation as to its use. It is thus evident that there was gross violation of the terms of the policy and the provisions of the law and the insurer was fully justified in repudiating the claim for breach of terms and conditions of the insurance policy and plying of the vehicle against the provisions of Motor Vehicles Act, 1988 and rules. The National Commission in the reported case cited above has held that in the event of gross violation of the terms of the policy and the provisions of law the repudiation of the claim by insurer is justified. It need to be stated that the decision of the Hon’ble Apex Court pressed into service on the behalf of the complainant can not be taken to help his cause. The decision in the case of B.V. Nagaraju (Supra) was distinguished by the National Commission in the above reported case, in view of the fact that in the case before the Hon’ble Apex Court only two to three more passengers were carried in a goods vehicle. On the contrary in the instant case in the tourist taxi persons more than double the permitted seating capacity were travelling and this was the cause of the accident and further there being gross violation of the terms of the policy and provisions of the law, the insurer made no deficiency in service in repudiating the claim. In fact the reported decision of National Commission fully apply to the facts of the instant case. In fact the reported decision of National Commission fully apply to the facts of the instant case. We also hold that the District Forum fell in error in even partly allowing the claim made by the insured-complainant and therefore the order being erroneous, the same is liable to be set aside. 10. For the reasons aforesaid the appeal succeed and is hereby allowed. Impugned order dated 21.05.2005 of the District Forum is set aside and the consumer complaint no. 373/03 is dismissed. Costs made easy.