National Consumer Disputes Redressal
National Insurance Company Ltd. vs Ms. Usha Devi on 13 July, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Revision Petition No. 2636 of 2010 (from the order dated 16.04.2010 in Appeal no. 71 of 2007 of Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Vijayawada) National Insurance Company Limited Through Assistant Manager Delhi Regional Office I Jeevan Bharti Tower II, Level IV, 124 Connaught Circus New Delhi 110 001 ........ Petitioner (s) Vs. Ms. Usha Devi, Wife of Shrinivasa Rao Resident of Vishnu Kundina Nagar Vinukonda (V & M) Guntur District. ..... Respondent (s) BEFORE: HONBLE MR. JUSTICE R. K. BATTA PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA MEMBER For the Petitioner Mr. Ranjan K. Pandey, Advocate For the Respondent Mr. K. S. Rama Rao, Advocate Pronounced on 13th July 2011 ORDER
ANUPAM DASGUPTA This revision petition is directed against the order dated 6th April 2010 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench, Vijayawada (hereafter, the State Commission). By this order, the State Commission set aside the order of the Guntur District Consumer Disputes Redressal Forum, Guntur (hereafter, the District Forum). The District Forum had dismissed the complaint.
2. The facts are that the complainant was the owner of a mini bus which was insured with the respondent insurance company (opposite party before the District Forum) for a sum of Rs. 3.5 lakh for the period 01.07.2004 to 31.06.2005. The vehicle met with an accident in the night of 31.05.2005 resulting in the death of 7 persons on the spot and injuries to about 17 persons as well as severe damage to the vehicle itself. A charge sheet was filed after necessary investigation. It would appear from the documents placed on record before the Fora below that the mini bus was carrying passengers of a marriage party. The driver of the mini bus drove the vehicle rashly and negligently and was unable to control the vehicle. As a result, the bus dashed against a stationery truck and thereafter another lorry coming on the road from the opposite direction.
According to the charge sheet, it was the driver of the mini bus who was at fault. The surveyor appointed to examine the claim of indemnification of the loss under the insurance policy, assessed the loss at Rs.1,25,000/- but pointed out that this was subject to admissibility of the claim under the terms and conditions of the policy. The insurance company (petitioner before us) repudiated the claim on the ground that there was a clear breach of the policy condition inasmuch as there were 25 persons traveling in the mini bus at the time of the accident as against the authorised strength of 13 persons. The District Forum agreed with the contention of the opposite party/ insurance company that this breach of condition was material and as such the claim was not admissible at all. However, the State Commission held, on the strength of the Apex Court judgment in B. V. Nagaraju vs Oriental Insurance Co. Ltd., Divisional Officer Hassan [ (1996) 4 Supreme Court Cases 647] that the violation in the terms of the police, viz., overloading was minor and directed the insurance company to pay to the complainant Rs. 1.25 lakh (being the loss assessed by the surveyor) along with interest @ 9% per annum from the date of the complaint till realisation. Aggrieved by this order, the insurance company has filed this revision petition.
3. We have heard the learned counsel for the petitioner.
4. In this case, it is undisputed that at the time of the accident the mini bus in question was carrying in all 26 persons, including the driver as against the authorised carrying capacity of 13 persons. The charge sheet filed at Police Station, Narasaraopet clearly stated that the driver of the mini bus was driving the bus in a rash and negligent manner at a high speed because of which the accident occurred. During the accident, the mini bus dashed against a stationery truck which was loaded with wooden logs and parked by the road side without any indicator lights, etc. After hitting against the stationery truck, the mini bus also dashed against another lorry coming from the opposite direction. The impact of the accident was so serious that as many as 7 persons died on the spot and 19 sustained injuries. Needless to add, the mini bus was also severely damaged as can be seen from the report of the surveyor.
5. The rash and negligent acts of the driver of the mini bus is thus detailed in the charge sheet. It cannot be overlooked that excessive over-loading by nearly 100% was one of the main contributing causes of the serious accident. It is an elementary scientific fact that the momentum of a moving object is the product of its mass and velocity. In other words, for a motor vehicle travelling at a given speed, the momentum would be twice if the total weight of the motor vehicle was increased two times and it is momentum which determines the severity of the effects of impact. In this case, overloading of the passengers by nearly 100% obviously led to correspondingly higher momentum of the mini bus which could not be controlled but the brakes and led to impacts that caused extreme damage, including deaths and physical injuries to 26 persons.
6. Applying the ratio of the Apex Court judgment in B. V. Nagaraju vs Oriental Insurance Co. Ltd. Divisional Officer, Hassan [(1996) 4 Supreme Court Cases 647] would, therefore, be misplaced here because of the extent of over-loading and the consequent failure of the control mechanism of the minibus on account of excessively high momentum which is evident from the fact that the mini bus hit two vehicles one after the other. This would clearly show that the braking system of the bus could not cope adequately the high momentum caused by the heavy over-loading. In the B. V. Nagaraju case, the facts were significantly different in that the driver of the vehicle was not at all responsible for the accident which was due to the rash and negligent act of the driver of the other vehicle and the overloading was of 3 persons against the authorised capacity of 6.
7. In view of the foregoing discussion, the revision petition is allowed and the impugned order of the State Commission is set aside. Consequently the order of the District Forum dismissing the complaint is restored and affirmed.
Sd/-
[ R.K. Batta, J ] Presiding Member Sd/-
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[ Anupam Dasgupta ] Member Satish