Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 139 (JK)

Oriental Insurance Co. Ltd. v. Rajinder Kumar

2010-03-17

MANSOOR AHMAD MIR

body2010
1. By medium of this writ petition, writ petitioner-insurer has questioned the orders passed by the Divisional Consumer Forum, Jammu-respondent no.3 and J&K State Consumer Disputes Redressal Commission, Jammu-respondent no.2, whereby whereunder complaint filed by respondent no.1 came to be allowed on the grounds taken in the complaint. 2. Respondent no.1 filed a complaint before the Divisional Consumer Forum, Jammu against the writ petitioner-insurer on the grounds that the vehicle bearing registration No.JK0L-6447 Video Coach was insured with writ petitioner-insurer vide Insurance Policy No.262100131/2001/1699/301 which was valid from 26.10.2000 to 25.10.2001. The said vehicle met with an accident near Patta Todian Bimber Gali (Poonch) on 19.05.2001. The vehicle was totally damaged and the claim was made against the writ petitioner-insurer who deputed a Surveyor on 25.05.2001. The said Surveyor visited the spot and assessed the loss of the vehicle. The Surveyor also submitted his report for the assessed loss of the vehicle but the claim was not satisfied. After sometime writ petitioner-insurer deputed another Surveyor, namely, L.Mehta and Company who also assessed the loss and submitted the report and even despite that writ petitioner-insurer failed to settle the claim of the respondent no.1. which constrained the respondent no.1 to file complaint before the Divisional Consumer Forum, Jammu. 3. The writ petitioner-insurer resisted the complaint on the grounds taken in the objections. After hearing learned counsel for the parties the complaint came to be allowed vide order dated 24.10.2005 and writ petitioner-insurer came to be directed to pay Rs.4,98,500/- along with interest @ 6% p.a. w.e.f. 13.07 2001 till its realisation. 4. Feeling aggrieved of the aforesaid order writ petitioner-insurer preferred an appeal before the J&K State Consumer Disputes Redressal Commission, Jammu-respondent no.2, which came to be dismissed vide order dated 24.04.2007 with costs quantified at Rs.4000/-. 5. The writ petitioner-insurer has questioned both these orders only on a short point that accident was the outcome of breach of terms and conditions of the insurance policy, driver was driving the vehicle in violation of the terms and conditions of the policy and route permit. Thus, the writ petitioner-insurer cannot be saddled with liability. The writ petitioner-insurer has not led any evidence before the Divisional Consumer Forum, Jammu to the extent that overloading of the passengers was the cause of accident. Thus, the writ petitioner-insurer cannot be saddled with liability. The writ petitioner-insurer has not led any evidence before the Divisional Consumer Forum, Jammu to the extent that overloading of the passengers was the cause of accident. In order to avoid the liability, the writ petitioner-insurer has to plead and prove that overloading was the cause of accident otherwise it has to satisfy the award. Both the forums below have specifically held that the reports of the Surveyors and the final investigation report-final charge sheet of the police framed in terms of Section 173 of the Criminal Procedure Code categorically establish that accident was the outcome of rash and negligent driving. It is nowhere pleaded and proved as discussed hereinabove that overloading was the cause of accident. Both the forums have rightly saddled the writ petitioner-insurer for liability. 6. Mr. Jain in support of his case cited two judgments of the Apex Court titled B.V. Nagaraju v. M/s Oriental Insurance Co.Ltd., Divisional Office, Hassan, reported in AIR 1996 SC 2054 and National Insurance Co.Ltd. v. Anjana Shyam and others reported in AIR 2007 SC 2870, and argued that the writ petitioner-insurer is not liable to satisfy the award. Both these judgments are not supporting his case rather these support the impugned judgments. 7. In case AIR 1996 SC 2054 (supra), their Lordships held as under :- "Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident." 8. As discussed hereinabove neither writ petitioner-insurer has pleaded nor proved that the alleged breach committed by the driver was the cause of accident or contributed to the accident. 9. In case reported in AIR 2007 SC 2870 (supra), the legal heirs of the deceased passengers and the injured passengers had made the claim petition. As discussed hereinabove neither writ petitioner-insurer has pleaded nor proved that the alleged breach committed by the driver was the cause of accident or contributed to the accident. 9. In case reported in AIR 2007 SC 2870 (supra), the legal heirs of the deceased passengers and the injured passengers had made the claim petition. The Apex Court held that the driver had allowed more passengers to travel in the vehicle thus, it was a case of overloading and saddled the insurer to satisfy the claim to the extent of number of passengers covered/permissible by the insurance policy and not more than that. Thus, in this case insurer was not absolved from the liability but only fastened with the liability to the extent of number of passengers covered by the policy. 10. In the instant case, complaint was made about damage of the vehicle and the vehicle was insured in terms of insurance policy. It is not the case of the writ petitioner-insurer that in terms of conditions of the policy, the insurer has not to satisfy the claim of the owner whose vehicle was totally damaged and insured. 11. In view of the above, I am of the considered opinion that both orders are well reasoned and need no interference. 12. Accordingly, this writ petition is dismissed along with connected CMP(s) if any.