National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Pabindra Naryan Uzir on 13 October, 2006
Equivalent citations: IV(2006)CPJ396(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Feeling aggrieved by the direction of the State Commission to pay Rs. 2,05,000 as damage/compensation along with interest @ 12% per annum on the above sum from 7.3.1994 and in case of failure to pay the sum within a period of three months, further interest @ 18% per annum was supposed to accrue; the Oriental Insurance Co. Ltd. has filed this appeal.
2. The necessary facts are being given in brief hereinafter. The complainant-respondent purchased a truck in the year 1988. He had a temporary permit to ply the vehicle from Assam to Tura and vice versa and that was valid upto 27.6.1993. The vehicle was insured for a sum of Rs. 2,50,000 for the period from 8.12.1992 to 7.12.1993 with the appellant-Insurance Company. The vehicle was hired by Ghasolia Roadways (Beltola) to carry 100 bags of ginger having total weight of 600 kg. from Dadangiri to Guwahati at a fare of Rs. 1,600. On 2.6.1993, the truck met with an accident near Rongi River bridge. The accident was allegedly caused due to sudden breakage of draggling and due to mechenical failure.
3. The complainant-insured preferred a claim. This claim was repudiated by the Insurance Company relying on Clause 3 of the policy.
4. According to the case of the respondent, the vehicle could not be used for carrying passengers except employees and their number could not exceed 6 persons. In this vehicle, more than 60 passengers were being carried as a result of this, it met with an accident and as many as 20 persons died.
5. The State Commission relying upon the judgments in , B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan and in , Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, allowed the complaint and granted relief as aforesaid.
6. The version of the complainant about the accident is given in paras 6 to 8, which is as under:
6. That on 2.6.1993 the truck in reference was driven by the petitioner regular driver Sri Ram Jatan Baram, who had due valid licence for driving the truck in reference and along with him there was one Shri Umesh Das, who was working as cleaner of the vehicle as petitioner's employee, while carrying the goods as per aforementioned challan in reference the vehicle met with an accident near Rongi River Bridge and ultimately it got submerged into the river. On the date of the accident the vehicle was examined by the M.V.I. West Garo Bills and the police also registered a case being Numbered Phullbari P.S. Case Nos. G3(G)98 under Section 270/337/338/304(A)/427 I.P.S. The vehicle could be lifted only on 13.7.1993. A copy of the driving licence in respect of the driver in reference and the certificate regarding the accident and registration of the police case is annexed hereto as document Nos. 5 and 6 to this petition.
7. That it is respectfully stated that as per M.V.I. Report, West Garo Hills dated 15.6.93 the cause of the accident of the vehicle is due to sudden breakage drag-link rod and the same is due to mechanical failure of the vehicle.
A copy of the aforementioned certificate of the M.V.I., West Cargo Hills is annexed hereto as Document No. 7 to this petition.
8. That the petitioner states that after the accident he came to know through Newspaper, etc. that about 32 persons, who were travelling in the truck died in the accident. On inquiry, the petitioner came to know that at the time of accident besides the driver and the cleaner (petitioner's employee). There were six employees of the heirer of the vehicle who was travelling with the goods. The petitioner also came to know that some persons forcibly got up on the truck to get down at a place which is situated in between Dadangiri of West Caro Hills in the state of Meghalaya and it has hardly any facilities of road communication, etc. and the villagers of town forcibly got up on truck, buses, etc. to go to their residence and if one refuses to take them on their respective trucks it would become just impossible to do any business of plying trucks from Dadanggiri to Tura. The petitioner also came to know that his truck in reference was meant only for carrying the goods. No fare or whatsoever was taken from any of the persons travelling in the truck if they were travelling at all in the truck.
7. It is apparent that the claimant has tried to justify the carrying of passengers on the pretext that the passenger forcibly travelled on the vehicle, a fact, which cannot be believed at all.
8. The terms of the Insurance Policy, inter alia provides as under:
5. The terms of the Insurance Policy, inter alia provides as follows-
Limitations as to use-Only for the carriage of goods within the meaning of the Motor Vehicles Act, 1988.
The policy does not cover-(1) Use for organised racing, pace making reliability trial or speed testing. (2) Use whilst drawing a trailer except towing of any one disabled machnically propelled vehicle, (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of WC Act, 1923.
9. It is evident that 60 persons were being carried in the truck. Out of 60, 32 persons had died. In this context, the important question would be as to how far such a violation of rule could be allowed to let a truck carry such large number of persons which many a time have led to death of some or many of the passengers. We have noticed in number of cases, dozens of persons have died, in similar kinds of accident and in terms of B.V. Nagaraju (supra), the Insurance Company was made to pay the amount.
10. Before proceeding further, we will have to take note of the submission of the learned Counsel for the appellant that five Judges Bench of Supreme Court in a case reported in AIR 1996 SC 1644 held that while interpreting the terms and conditions of the policy, the duty of the Court was to interpret the same in the manner so expressed in the policy. It was submitted by learned Counsel that this judgment was not brought to the notice of Hon'ble Judges while deciding the case of B.V. Nagaraju (supra).
11. Leaving aside the extreme position taken, it may be noticed that in the case of B.V. Nagaraju v. Oriental Insurance Company Ltd., facts were different. In that case, not 60, just 3 additional persons were being carried and they were owners of the goods loaded. The claim pristinely related to the damage caused to the vehicle insured, which could not have been denied in the facts and circumstances. In that case, it was "nobody's case that the driver of the insured vehicle was responsible for the accident". The accident occurred due to head-on collision of the insured vehicle with on-coming vehicle, which resulted in the damage. In that case, the Supreme Court observed that, "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, could not 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 B.V. Nagaraju v. Oriental Insurance Co. Ltd., the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra) was also considered.
12. A reading of the judgment in B.V. Nagaraju (supra) indicates to doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' did not cross swords with the 'main purpose' highlighted earlier. The effort must be toharmonise the two instead of allowing the exclusion clause to snipe successfully at the . main purpose.
13. In the case in hand, we have to see that the main purpose of insurance is to insure the vehicle against covered loss and to indemnify the owner, only so long as the Act or omission of owner and driver of the vehicle does not endanger life and limb of passengers or passers-by on the road. The safety of life and limbs of all the passengers and persons moving on road is intention of provisions of law incorporated in Motor Vehicles Act. The reading down of the provision like the present one in the light of main purpose of the provision cannot overlook the safety of life and limb of all the passengers and the persons moving on the road. The main purpose rule has to be seen in a holistic and harmonious way by considering the purpose of the exclusion clause as well as various provisions of Motor Vehicles Act. The offences relating to driving the vehicle exceeding permissible weight; driving the vehicle at excessive speed, etc.; driving dangerously; driving by a drunken person or by a person under the influence of drugs; driving when mentally or physically unfit to drive; to drive vehicle in unsafe condition; using vehicle without permission, are punishable under Chapter XIII of Motor Vehicles Act.
14. Besides, the present case is not a case where the complainant respondent was not aware of carrying passengers as is evident from justification given for allowing passengers to travel in the truck with such a large number. Here it was definitely in his knowledge. It is not a breach of rule by an innocent and honest owner of the vehicle.
15. The reading down of exclusion clause would not be allowed to the extent of totally eclipsing and wiping out the exclusion clause for all practical purposes. We find it difficult to ignore this aspect.
16. Moreover, if on an average, weight of 52 to 55 kg. per person is taken into consideration, it would come nearly 3120 to 3300 with 100 bags of ginger having total weight of 600 kg., thus nearly over 4000 kg. weight was being carried in the truck. The truck had not collided with any other vehicle. The fact is that it has fallen and submerged in the river killing 32 persons would itself speak that on account of the momentum created by massive weight of over 4000 kg. i.e. 4 tonnes, the driver could not control the vehicle from falling in the river leading to death of 32 persons. In these circumstances, it appears difficult to accept that the breach was so fundamental that it would vitiate the contract. It is not a case like that of B.V. Nagamju. In that case, it was not so fundamental in nature as it would not have gone on to contribute to the causing of accident. The over loaded vehicle moving in a momentum of high speed if sought to be stopped suddenly, the force of momentum would be much more to incapacitate the breaks from stopping a skidding vehicle into the river.
17. It was also contended that immediately on receipt of the intimation about the loss, a Surveyor was appointed to investigate and to assess the loss and on examination of documents, it was revealed vide permit dated 15.3.1993, the truck in question was allowed to ply between Guwahatiand Tura via Dainadubi/ Rangging/Nagalbibra/N. Nagar/ Bajingdoba/ T. Killa/Phylbari/Gabobadha/Mahendraganj but the driver of the respondent in violation of the permit adopted an unauthorised route and took the vehicle from Dadangiri to Rangrem through P.W.D. Road. Whether it is a case of goods carriage or otherwise, the permit is required to specify the route or area(s) in which the vehicle could be used. The vehicle could not be taken to any other area. Reasons may be several including topographical and geographical conditions and the condition of the vehicle. This may also be essential to avoid such an accident. Thus, it was also being run in violation to permit.
18. The State Commission has not considered above aspects at all. If seen in the light of distinguishing features of the case and to ensure that life and limb of persons travelling in the truck and passers-by on the road are not endangered and in above circumstances, it would appear that there was no deficiency in repudiating the claim, for the claim was rightly repudiated. Supposing, there could be two different perspectives to repudiate or not to repudiate the claim but on facts and circumstances if an unbiased and honest view could be taken in proper perspective to repudiate the claim, the repudiation of the claim would not amount to deficiency in rendering service particularly in the facts and circumstances of the case.
19. For the aforesaid reasons, we allow the appeal and dismiss the complaint. The parties are, however, left to bear their own cost.