JUDGMENT : Sugato Majumdar, J. 1. The present suit is filed by the Plaintiff in respect of insurance claim against the Defendant no. 1. 2. The plaint case, in nutshell, is that the Plaintiff is engaged in the business of manufacture and sale of refined rice bran oil. Oil is manufactured at the Plaintiff’s facilities on GT Road, Pemra, P.O.- Jothrang, District-Burdwan. Oil is transported to different states of the country. The Plaintiff use to engage various transporters having oil tankers for transportation of oil. In order to indemnify from any loss which may arise during transportation, the Plaintiff obtained a policy of insurance from the Defendant no. 1. The said policy is one known as Marin Cargo Open Policy. Under the policy the Plaintiff was insured from loss, arising from transit risk, including accident. The policy was applied for and issued at Defendant no. 1’s office at B-2/1, Gillander House, 8, Netaji Subhas Road, (2nd Floor), Kolkata – 700001 within jurisdiction of this Court. Total sum insured was Rs.10,00,00,000/-. Defendant No.1 is a statutory body running insurance and allied business and the Defendant No.2 is a transporter. 3. The Plaintiff entered into a contract for carriage of oil with Defendant no. 2, the transporter, for transportation of 26.640 M.T oil, the value of which was Rs.11,58,840/-. The agreement of transportation between the Plaintiff and the Defendant no. 2 was entered into at the Plaintiff’s office at 143, Cotton Street within jurisdiction of this Court. Thereafter, Plaintiff handed over oil to Defendant no. 2 for loading into tanker and transportation which were obligations of the Defendant no. 2. 4. The consignment in question was loaded in a tanker bearing no. WB-41B/4547. The tanker met with an accident at Jharpoakaria Thana, Mayurbhanj, Orissa on 19/01/2005. As a consequence of the accident major portion of oil was lost and the Plaintiff suffered loss and damage of 24.840 MT of oil value of which was Rs.10,80,540/-. This loss was confirmed by the Defendant no. 2 and Defendant no. 1’s surveyor. By a letter dated 25th January, 2005, Plaintiff gave a notice of its claim of loss to the Defendant no. 2. Thereafter, in terms of a letter dated 7th March, 2005, the Plaintiff submitted the claim for loss of 24.840 M.T. of oil valued at Rs.10,80,540/- along with necessary documents to the Defendant No.1. The Defendant no. 1’s surveyor. By a letter dated 25th January, 2005, Plaintiff gave a notice of its claim of loss to the Defendant no. 2. Thereafter, in terms of a letter dated 7th March, 2005, the Plaintiff submitted the claim for loss of 24.840 M.T. of oil valued at Rs.10,80,540/- along with necessary documents to the Defendant No.1. The Defendant no. 1 in terms of its letter dated 22/08/2005 denied liability in view of the fact that the tanker was overloaded. The Plaintiff pursued the matter under the Consumer Protection Act from August 2006 to March 2008. Ultimately, by an order dated 31st March, 2008 the National Consumer Disputes Redressal Commission held that the Plaintiff would be entitled to obtain benefit under Limitation Act. 5. In view of denial of the Defendant no. 1 to pay the Plaintiff’s insurance claim, the Plaintiff was constrained to institute the present suit praying for a decree of Rs.17,19,450/-, interest along with other remedies. The particulars of the claim of the Plaintiffs is that, PARTICULARS (a) Principal Sum Rs.10,80,540/- (b) Interest at the rate of 18% per annum Since 25th January, 2005 to 7th May, 2008 (1199 days) Rs.6,38,910/-(rounded off) Total Rs.17,19,450/- 6. Defendant no. 1, namely, the National Insurance Company Limited contested the suit by filing written statement, denying all materials allegations. It is admitted that Plaintiff took one Marine Cargo Open Policy from the Defendant no. 1. It is stated in the written statement that the Defendant no. 1 had no knowledge that the Plaintiff entered into any contract for carriage with the Defendant no. 2 for transportation of 26.640 M.T rice bran oil of the value of Rs.11,58,840/-. It is also denied that loading of the oil into tanker, transportation and all further acts were the obligations of the Defendant no. 2. It is further averred in the written statement that Plaintiff approached the State Consumer Disputes Redressal Commission when the Defendant No.1 refused to entertain the claim of the Plaintiff. In the Petition filed before the Commission, it was specifically pleaded that the Plaintiff made necessary inquires with regard to the credential of the carrier in the market and upon enquiry the Plaintiff was satisfied that the carrier possessed all necessary documents for carrying on the said transport business. But the plaint is silent on these pleadings. It is the specific case of the Defendant no. But the plaint is silent on these pleadings. It is the specific case of the Defendant no. 1 that the tanker which had transported oil did not have the capacity to take load more than official carrying capacity being 22 MT of cargo. The tanker could not take a load of 26.640 MT of cargo. While deciding the load of the cargo (rice bran oil), specific gravity of the oil being .098 should be taken into consideration. According to the Defendant no. 1, the later is not liable to pay the insurance claim of the Plaintiff as the later intentionally suppressed the actual carrying capacity of the vehicle and the tanker while giving effect to the insurance cover. It is specifically averred that the Plaintiff had the knowledge about carrying capacity of the tanker. Non-discloser of the Plaintiff to the answering Defendant about the carrying capacity of the tanker is willful misconduct on the part of the Plaintiff. The Plaintiff, in connivance with the Defendant no. 2, defrauded the Defendant no. 1 by making a claim of higher quantity of cargo which was not possible to be transported by the tanker going beyond its permissible limit. The Defendant no. 1 made survey in respect of the claim of the Plaintiff and subsequently reviewed the same and had informed the Plaintiff by a letter dated 30/08/2006 that the Plaintiff could come with acceptable documents/evidence, duly certified by appropriate authority that the vehicle and the tanker, carrying the consignment, had the capacity to take load of 26.640 MT cargo. In that case the claim could have been reconsidered further. Since, the Plaintiff failed to furnish such documents duly certified by appropriate authority, the claim of the Plaintiff was not reviewed. Referring to the surveyor’s report, it is pleaded that there was a gross negligence on the part of the insured and the cause of accident might reasonably be attributed to overloading of the tanker. Taking all aspects of the matter into account the Defendant no. 1 disowned the liability in terms of Clause 2.1 of the policy. In background of these conspectus of facts, it is pleaded in the written statements that the suit should be dismissed. 7. On the basis of rival pleadings following issues were framed : 1. Whether the Plaintiff is entitled to money decree as claimed? 2. 1 disowned the liability in terms of Clause 2.1 of the policy. In background of these conspectus of facts, it is pleaded in the written statements that the suit should be dismissed. 7. On the basis of rival pleadings following issues were framed : 1. Whether the Plaintiff is entitled to money decree as claimed? 2. Whether the Plaintiff could otherwise avoid its responsibility bout loading of the oil into the tanker? 3. Whether the Plaintiff pursued any other remedy for the self-same cause of action? 4. Whether the vehicle through which oil was being transported has the minimum capacity to take the required load? 5. Whether the Plaintiff sustained any loss or damage due to the latches on the part of the Defendants? 8. Oral and documentary evidences were adduced. 9. All the issues are taken up together since these issues are interlinked. 10. Mr. Sen, the Learned Counsel for the Plaintiff argued firstly, that the Defendant no. 1 failed to prove that the accident took place due to overloading of the tanker. There is no direct evidence in this regard. The Defendant no. 1 proceeded on the basis of the surveyor’s report and repudiated the claim under exclusion clause of the policy. The contents of the surveyors’ reports were not proved in evidence. No other evidence was produced to demonstrate that the cause of accident was overloading. It is further argued that repudiation of contract on the basis of surveyor’s report was again reopened by appointing an investigator. The report of such investigator was never made over to the Plaintiff. The Defendant no. 1 themselves concluded that there was no evidence to suggest that the taker was capable of carrying the weight of consignment which necessarily implied that the case of overloading, as stated by the surveyor was not based on any concrete evidence. 11. Secondly, it is argued that consignment was in liquid form. Any overloading of the tanker would have resulted in seepage by way of overflowing. That cannot be a cause of accident and this is not proved. 12. Thirdly, it is argued that the Defendant No.1 is bound to justify the ground for rejection of claim made under the insurance policy. It is the Defendant’s case that the Plaintiff is guilty of willful misconduct. The Defendant has failed to establish such misconduct. That cannot be a cause of accident and this is not proved. 12. Thirdly, it is argued that the Defendant No.1 is bound to justify the ground for rejection of claim made under the insurance policy. It is the Defendant’s case that the Plaintiff is guilty of willful misconduct. The Defendant has failed to establish such misconduct. The burden of proof is on the Defendant that the vehicle did not have capacity to carry load in excess of 22 MT. This fact was not established by evidence. The principal document relied upon by the Defendant is the surveyor’s report which was subsequently abandoned by appointment of a new investigator. Therefore, the ground for repudiation of the claim is not supported by any evidence at all. Neither the first surveyor nor the second investigator came and deposed before this Court. 13. Fourthly, referring to M/s. ICICI Lombard General Insurance Company Limited Vs. Suresh Mehta & Another [(2017) SCC Online Del 9511], Lakhmi Chand Vs. Reliance General Insurance [ (2016) 3 SCC 100 ], Narcinva V. Kamat Vs. Alfredo Antonio Deo Martins [ (1985) 2 SCC 574 ], National Insurance Company Limited Vs. Swaran Singh [ (2004) 3 SCC 297 ], Mr. Sen argued that payment of claim amount under policy of insurance should not be denied unless and until it is proved that the alleged breach was the sole cause of accident. Referring to M/s. ICICI Lombard General Insurance Company Limited’s case Mr. Sen argued that overloading of the vehicle cannot be a ground for rejection of the Plaintiff’s case unless and until it is established that the overloading itself is a cause of accident. Therefore, according to Mr. Sen the Defendant no. 1 is liable to pay the claim amount. 14. Per Contra, Mr. Dutta, the Learned Counsel for the Defendant submitted that the Defendant no. 1 repudiated the claim of the Plaintiff by its letter dated 22.08.2005, under Clause 2.1 of the terms and conditions of the policy, on the ground of overloading of tanker and willful misconduct of the Plaintiff. The Plaintiff accepted that there was overloading but tried to justify it as market practice. Marine Survey Report (Ext.L) shows that cause of accident is overloading of the tanker. This is attributable to the willful misconduct of the assured that is the Plaintiff. The Plaintiff accepted that there was overloading but tried to justify it as market practice. Marine Survey Report (Ext.L) shows that cause of accident is overloading of the tanker. This is attributable to the willful misconduct of the assured that is the Plaintiff. Referring to Section 113(3) (b) of the Motor Vehicles Act, 1988 it is submitted by the Learned Counsel for the Defendant no. 1 that the said provision cast duty not only upon the driver but upon all such persons who allowed the vehicle to run with excess laden weight. Plaintiff is under duty to comply with the terms of the policy; plaintiffs non-compliance and consequent loss is to be borne by himself as the insurer is not liable to pay any damages on account of willful misconduct of the insured himself. According to the Learned Counsel, Plaintiff is not entitled to any claim. 15. Ext.A is the policy of insurance being policy no. 100600/21/04/4400010 valid from 13.04.2004 to the midnight of 12.04.2005. Sum insured was Rs.10,00,00,000/-. Clause 2 provides for general exclusion Clause. Clause 2.1 provides that in no case the insurance cover should extend to loss, damage or expense, attributable to willful misconduct of the assured. This Clause is referred to by the Learned Counsel to repudiate the claim. Ext. E is the invoice dated 31.01.2005, this shows that the tanker was carrying rice bran oil weight of which was 26.640 MT. Ext.L is the Marine Survey Report. The Report shows that in ordinary course of journey when the carrying tanker was proceeding along National Highway No. 6, at Vill.: Manabhanj, P.O.: Pandhora, Near Jharpokaria Police Station, District:-Mayurbhanj, Orissa at about 12-30 hours on 18/19-01-2005 suddenly met with an accident. It was further elaborated that at about 00-30 hours on 19/01/2005, the driver of the tanker suddenly observed that another vehicle was coming with heavy speed from opposite direction. In order to avoid head-on-collision the driver of the tanker applied brakes. As a result, the tanker slipped towards right hand side of the road and finally capsized in upside down condition. Due to violent impact of the accident, manhole covers of five tank compartments were reportedly fell off and the contents ran into waste. It is concluded that cause of accident was due to overloading of cargo in the taker lorry. 16. Due to violent impact of the accident, manhole covers of five tank compartments were reportedly fell off and the contents ran into waste. It is concluded that cause of accident was due to overloading of cargo in the taker lorry. 16. Three Judges’ Bench of the Supreme Court of India in National Insurance Company Limited Vs. Swaran Singh & Ors. [ (2004) 3 SCC 297 ] observed : “49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.” 17. In B.V. Nagaraju Vs. Oriental Insurance Company Limited [ (1996) 4 SCC 647 ], the insured truck sustained major damage and accident with the gas tanker; at that time the truck was carrying nine passengers while the policy did not cover carrying of nine passengers. It was observed : “Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the 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. In the instant case, however, we find no such contributory factor.” 18. In Lakshmi Chand Vs. Reliance General Insurance [ (2016) 3 SCC 100 ] referring to previous authorities including Swaran Singh’s case (supra) and Nagaraju’s case it was observed : “16. It becomes very clear from a perusal of the abovementioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods-carrying vehicle. Further, as has been held in B.V. Nagaraju [B.V. Nagaraju v. Oriental Insurance Co. In the instant case, the respondent Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods-carrying vehicle. Further, as has been held in B.V. Nagaraju [B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647 ] that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end.” 19. Marine Survey Report (Ext.-L), shows that the accident was caused by an errant vehicle coming from a wrong direction. In order to avoid head-on-collision the driver of the tanker applied brakes. As a result, the tanker slipped towards right hand side of the road and finally capsized in upside down condition. Due to violent impact of the accident, manhole covers of five tank compartments were reportedly fell off and the contents ran into waste. The report gets corroboration by the police report, part of Ext.-F which shows that the tanker was capsized in a small roadside pond on 18/19-01/2005 at 12.30 A.M. Ostensibly the report shows that cause of accident was rash and negligent driving of an errant vehicle. Although concluded that cause of accident was overloading, the report failed to establish or even indicate any nexus between overloading, rash driving of an errant vehicle and the accident. A forced conclusion without having any reasonable nexus cannot be acceptable. There is no evidence that overloading of tanker attributed to the accident. Sec. 113 of the Motor Vehicle Act cast a duty on the owner of the vehicle and the driver or person in charge of a motor vehicle to see observance of the provisions of the section. Burden of proof is on the defendant insurer to establish that accident took place but for a fundamental breach of policy and that overloading of the tanker is the direct cause of accident. The Defendant No.1 did not produce the driver of the vehicle as witness who could be reliable witness. Marine Survey Report is not denied by the Defendant No.1. In this case, even overloading to the tanker was a breach on the part of the Plaintiff insured, it was not such a fundamental breach, which was a direct cause of accident. The Defendant No.1 did not produce the driver of the vehicle as witness who could be reliable witness. Marine Survey Report is not denied by the Defendant No.1. In this case, even overloading to the tanker was a breach on the part of the Plaintiff insured, it was not such a fundamental breach, which was a direct cause of accident. Although the report (Ext.-L) mentioned that cause of accidents was overloading, the same does not find any credibility or force from the nature of accident described in the report. The driver of the tanker who reported the accident, should be examined to extract the truth, which the Defendant No.1 failed to do, the burden of proof being on them. The Defendant no. 1 failed to establish existence of conspectus of facts entitling them to repudiate the claim invoking Clause 2.1 of the policy. Therefore, the Defendant No.1 cannot avoid liability to pay the insurance claim of the Plaintiff on ground that the tanker was overloaded. 20. Once it is decided that the insurance company, namely, the Defendant no. 1 cannot escape its liability to pay the insurance claim, it is to be decided to what extent the claim amount should be paid. The claim was for loss of 24.840 MT refine rice bran oil. This is contained in Ext.H a letter dated 07.05.2005. Marine Survey Report, on the other hand, shows that the loss was to the extent of 24.780 MT oil value of which comes to Rs.10,77,930/- to the extent of 24.780 MT is an admitted position. Defendant no. 2 confirmed that loss of oil was to the tune of 24.840 MT, in terms of the letter dated 01.02.2006 being part of Ext.1, filed by the Defendant no. 1. In terms of the letter dated 26.05.2006, being Ext.J, the Defendant no. 1 refuted the claim of the Plaintiff on the ground of overloading for the second time without disputing or denying the loss of 24.840 MT of oil. Therefore, the Defendant no. 1 is liable to indemnify the Plaintiff to the extent of value of 24.840 MT of rice bran oil which is Rs.10,80,540/-. 21. For reasons, as aforesaid, therefore, Defendant no. 1 is not justified in refusing the claim of the Plaintiff. Plaintiff is entitled to relief prayed for. 22. The issues are decided accordingly. 23. The suit is, accordingly, allowed. 24. 21. For reasons, as aforesaid, therefore, Defendant no. 1 is not justified in refusing the claim of the Plaintiff. Plaintiff is entitled to relief prayed for. 22. The issues are decided accordingly. 23. The suit is, accordingly, allowed. 24. The Plaintiff do get a decree of Rs.10,80,540/- along with interest at a rate of 10% per annum, calculated and payable from the date of institution of the suit till recovery. 25. In case the Defendant No.1 neglected and failed to pay the amount within sixty days, the Plaintiff shall be at liberty to put the decree on execution. 26. The suit is disposed of along with pending application, if any. 27. Let decree be drawn up.