State Consumer Disputes Redressal Commission
Oic Ltd., vs Baldev Raj on 11 October, 2007
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 63/2007. Date of Decision 11.10.2007. The Oriental Insurance Company Ltd., Divisional Office at Vidya Bhawan, Place Road, Mandi, Distt. Mandi, H.P. through its Divisional Office. . Appellant. Versus Baldev Raj S/o Sh. Lekh Raj, R/o Vill. Dhannehar, PO Patrighat, Tehsil Sarkaghat, Distt.Mandi, HP. . Respondent. Honble Mr. Justice Arun Kumar Goel, President. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting ? For the Appellant. Mr. Sunil Chaudhary, Advocate. For the Respondent. Mr. Gurdev Singh Thakur, Advocate. O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) When hearing in this case commenced, learned counsel for the appellant Mr. Chaudhary submitted two points viz,
(a) that at the time of accident there were 7 persons travelling i.e. one driver and six others, whereas in the registration certificate permissible number of persons who could travel in the vehicle was 1+5. Thus according to him, one extra passenger was travelling in the vehicle; and
(b) that against the loss assessed by the surveyor in the sum of Rs. 28,012/- District Forum below has awarded Rs. 55,000/-; therefore, according to Mr. Chaudhary this appeal deserves to be allowed on both these counts and he prayed for accordingly. Both these pleas have been contested by Mr. Thakur learned counsel for the respondent. Per him compensation awarded in this case calls for no interference and carriage of one extra passenger, even if it be assumed for the sake of argument that he was there, will not make any difference unless it is shown to be either the sole cause or contributory cause for the accident in question.
2. Facts have been noted in detail in the impugned order, as such we are not being repeating those. Vehicle being insured on the date of accident under a valid policy of Insurance is not in dispute, as such we feel determination of this appeal on the basis of admitted facts.
3. In order to succeed that there was one excess passenger travelling in the vehicle at the time of accident than prescribed, unless it was shown that the carriage of one extra passenger was a breach of carriage humans in a goods vehicle more than the number permitted in terms of the Insurance policy, was the sole or contributory cause of the accident in question, mere carriage of one extra passenger is of no consequence.
4. At this stage Mr. Chaudhary submitted that carriage of extra passenger also constituted breach of conditions of the Insurance policy. Again it had also to be shown as well as proved that it was such a fundamental breach, so as to exonerate the appellant-insurer to be relieved of its liability altogether. Exclusionary clause in the Insurance policy in this behalf has to be read down to serve the main purpose of the policy. Onus was heavily upon the appellant which it has failed to discharge in our opinion.
5. For taking this view reliance is being placed on the decision of Honble Supreme Court in the case of B.V. Nagaraju Vs. M/s Oriental Insurance Co. Ltd, AIR 1996 (SC) 2054. Accordingly this plea is hereby rejected.
6. Now coming to the second plea that the District Forum below fell into error in allowing Rs. 55,000/- against the surveyors assessment of the loss being to the extent of Rs. 28,012/-. In this behalf when a reference is made to the report of the surveyor, Annexure O-II, it is clear that he has assessed the loss at Rs. 38,012/- and as per less portion clause implied by the insurer, he has reduced it by Rs. 10,000/-. We are not satisfied with this deduction, nor anything could be pointed out from the record of the complaint file to justify this deduction. At this stage Mr. Thakur learned counsel for the respondent submitted that his client has placed on record the affidavit of the repairers from whom he got the vehicle repaired after accident. A perusal of all these affidavits which are Annexures CR-1 to CR-6, speak of repairs and receipt of payment but are silent about the nature of repair carried out by the deponents. Nor any receipts/bills are produced on record. In fact Annexures CR-1 to CR-6 are stereotyped. In these circumstances, the grant of Rs. 55,000/- by the District Forum below cannot be upheld being without evidence and also on higher side.
7. No other point is urged.
In view of the aforesaid discussion, thus while partly allowing this appeal it is ordered that instead of Rs. 55,000/- awarded by the District Forum below, appellant is held entitled to Rs. 38,012/-. Rest of the order regarding interest and cost etc. is upheld. Subject to this direction the appeal is disposed of.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Office is directed to supply a copy of this order free of costs to the parties as per rules. Appeal stands disposed of.
Shimla 11th October, 2007. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), Karan* Member.