National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Rishi Jaiswal And Anr. on 11 January, 2007
Equivalent citations: 2(2007)CPJ97(NC), AIR 2007 (NOC) 1263 (NCC) = 2007 (2) ALJ 459, 2007 (2) ALJ 459
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This appeal has been filed against the order of the Himachal Pradesh Consumer Disputes Redressal Commission, Shimla in O.C. No. 16 of 1997 decided on 25.8.1997.
2. The Oriental Insurance Co., the appellants were directed to pay amount of Rs. 4,92,000 to the complainant Rishi Jaiswal on account of loss suffered due to accident of his insured vehicle along with interest @ 18% p.a. from 10.10.1995 with cost of Rs. 2,000.
3. Feeling aggrieved with the order passed by the State Commission, the present appeal has been filed by the appellant-Oriental Insurance Co. Ltd.
4. The relevant facts leading to filing of this appeal are as stated herein below:
5. The complainant/respondent Rishi Jaiswal had purchased a bus No. HP-48-0967 through the Financier, SBI. The vehicle was got insured from 6.10.1995 to 5.10.1996 by the SBI on behalf of the complainant. The complainant himself also took another Insurance Policy by getting the vehicle insured with New India Assurance Co. Ltd. for the same period.
6. On 10th October, 1995, the above said vehicle while on its way on the hilly track of Chamba to Dharwala near Bagga met with an accident. As against the carrying capacity of 30 persons, over 42 passengers were travelling. The driver of the vehicle while negotiating a curve lost control near Bagga and fell in the river Ravi. Due to heavy current of water in river Ravi, the ill-fated bus was carried away to a distance of about 150 ft. away from the spot where it had fallen in the river. Complete body of the bus excepting small portions was submerged in the water. As per information collected by the Surveyor 32 persons were reportedly killed though news papers reported that 40 persons were killed in the accident including the driver. On 11th October, 1995, the complainant sent intimation of the accident to both the aforesaid Insurance Companies.
7. The complainant/respondent No. 1 claimed a sum of Rs. 5,60,000 along with Rs. 1,00,000 as compensation for unnecessary delay in settlement of the claim and consequent mental agony and harassment and the interest from the date of accident for the purpose of repayment of loan amount by the respondents beyond Rs. 1,68,829 which was standing due on the date of accident.
8. The case of the appellant, New India Assurance Company Ltd. was that the complainant requested for cancellation of the policy on 12th October, 1995 and refund of premium. The policy was cancelled by the endorsement dated 27.11.1995. The New India Assurance Company Ltd. refunded the premium on 29.11.1995 and the same was returned back by the complainant vide letter dated 9.12.1995 and New India Assurance Company Ltd. was requested to settle the claim. The New India Assurance Company once again sent the cheque towards refund of premium. It was returned back.
9. It is contended on behalf of the appellant/O.P. No. 1 that as on the date of accident both the policies were in force. As per condition No. 5 of the policy, both the Insurance Companies had to share the loss equally and that would not absolve New India Assurance Company Ltd. from their liability. The appellant /Insurance Co. had repudiated the claim vide letter dated 7th October, 1997 on the ground of breach of conditions of the policy namely fake driving licence and over-loading.
10. As per spot survey, the driver besides carrying normal passengers inside the bus, also carrying around 10-12 passengers sitting on the top of the bus. As against the sitting capacity of 30, 42 passengers were travelling in the bus. Due to heavy loading, the accident took place, for the bus could not be controlled and went out of control, skidded on the road while negotiating a curve and ultimately fell in the river Ravi leading to death of 32 persons at least. Accordingly, it was contended that in view of the breach of the conditions, no amount was payable in view of the two concurrent policies. In view of the factual situation, it was submitted that the appellant could not be asked to pay the entire amount. The interest awarded @ 18% p.a. was also on higher side and it would not have been awarded from the date of filing of the complaint.
11. Before proceeding further let us take note of the objection about the breach of terms and conditions. From the photocopy of the licence produced as Annexure 'E' it is apparent that Baljit Singh s/o Mr. Santosh Singh was purportedly given a licence for driving heavy transport vehicle, valid from 1.3.1991 to 29.8.1998. It is submitted that the licence itself showed that it was purported to be issued for driving Heavy T1 vehicle on 1.3.1991 and was valid upto 29.8.1998. Since it was a bus, it would fall within the meaning 'heavy passenger motor vehicle' in terms of Clause 17 of Section 2 of the Motor Vehicles Act. Heavy passenger motor vehicle "means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms". Seeing the sitting capacity being 30 passengers only the bus should be in the stage carriage and 'stage carriage' means, in terms of Clause (40) of Section 2, a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. In terms of Clause (35) of Section 2 of the M.V. Act, 'public service vehicle' "means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes, maxi cab, a motor cab, contract carriage, and stage carriage". Thus, a bus would be a public service vehicle as well. In terms of Clause 47 of Section 2 of the Motor Vehicle Act, 'public service vehicle' is included in term 'transport vehicle'. The term 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. As per Section 14(2)(a), a driving licence to drive a transport vehicle could be issued only for 3 years. As such, it was evident from the licence that it was a fake licence.
12. In view of the above there appears force in the submission made by the learned Counsel for the appellant and there could be a breach in so far as the driving licence is concerned. In view of the judgment in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. , if the licence was a fake licence, the Insurance Company could avoid liability only after proving that the complainant was aware about the fakeness of the licence. In absence of such a proof of breach of condition of policy on the part of the insured, it would not be possible to avoid its liability on this score. In this matter though it is presumed in ordinary course that the person knows the law but it would be difficult to say that an ordinary person would be able to find that the licence was fake just by saying that it was given for more than 3 years. As such, we feel that it may not help the appellant much.
13. As regards the second breach of overloading, the 5 Judges Bench in 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 the learned Counsel that this judgement was not brought to the notice of Hon'ble Judges while deciding the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd. 11 (1996) CPJ 18 (SC) : I (1997) ACC 123 (SC) : AIR 1996 (SC) 1644. Besides, in that case just three extra persons were carried in the truck. In the case in hand as against the capacity of 30 passengers, 42 persons were carried and about 10 to 12 passengers travelled on the roof of the bus. 32 persons did not die in the accident as it had happened in this case. In that case 3 additional persons were being carried and they were owners of 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 not no body'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 oncoming 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 , also considered.
14. As per Surveyor's report, the laden weight was 13,200 kgs. and uladen weight was 7020 kgs. After visiting the spot, the Surveyor reported as under:
As per the spot report, statement given by the insured as also the FIR, the insured vehicle was proceeding from Chamba to Dharwala when near Bagga as the vehicle was negotiating a steep and sharp ascent, the driver lost control due to an unspecified reason due to which the bus fell into the swollen river Ravi where it was completely submerged. All the passengers were trapped inside the bus and they died of suffocation and drowning. The copy of the FIR obtained by the insured from the Court of CJM is not readable and we have advised the insured to provide a more readable copy to the insurers. We are not withholding the assessment on the above account.
As per the evidence available as also the spot report, the ill-fated bus was swept to a distance of 150 downstream in the swollen river. As per the spot report, there were a number of persons on top of the bus who were swept away in the current. Of the passengers in the bus, one Sh. Dharam Singh was thrown aside on the bank and he was evacuated to a hospital where he died later on. As such, the only living eye-witness to the accident was lost. Besides the above a small child was evacuated alive and was stated to be under treatment. The spot Surveyors have stated that the exact number of persons travelling in the ill-fated bus could not be known and we understand that the insurers are having the above aspect investigated.
15. Seeing the weight and death of at least 32 persons and the fact that the passengers sitting on the roof, the bus could not be controlled and ultimately fell into the river Ravi itself speaks volumes about the negligence in making the passengers to sit on the roof while over loading the bus in a hilly area. We need not say that movement of vehicle, depends on its momentum; and momentum is defined as the total quantity of motion contained in the body; more the quantity more is momentum. Therefore, it cannot be imagined that weight of 12 extra passengers would not affect forward or reverse motion and momentum of the bus to make it uncontrollable and it would be stupendous task to control the vehicle on a sharp and steep ascent. This would indicate that the approach in carrying the passengers was not only negligent but also totally callous, endangering life and limb of the passengers. It is not a case like the case of B.V. Nagaraju (supra). The overloading was so fundamental in nature that it certainly contributed to the causing of such a shocking accident. We would not like to encourage such kinds of over loading in the name of main purpose rule eclipsing need of safety of the passengers and relating thereto provisions provided under the Motor Vehicle Act.
16 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 plea of reading down of the provisons of the policy in the light of main purpose rule of the insurance cannot overlook the safety of life and limb of all the passengers in a vehicle and the persons moving on the road. The main purpose rule has to be seen and applied in a holistic and harmonious way by considering the purpose of the exclusion clause as well as various provisions of Motor Vehicles Act, in light of facts and circumstances of each and every case. It would neither cover nor would be applicable to all kinds of cases. 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 of physically unfit to drive; to drive vehicle in unsafe condition; using vehicle without permission, are punishable under Chapter XIII of Motor Vehicles Act. It may be mentioned that Section 123 prohibits riding on running board etc. in following words:
123. Riding on running board, etc. (1) No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle.
(2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle.
(Emphasis supplied)
17. 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 including offences punishable under Sections 177 to 198 and particularly driving dangerously as punishable under Section 184 of the Motor Vehicles Act. We find it difficult to ignore this aspect.
18. In any case, the appellant was not supposed to pay the amount of compensation alone on account of the fact that both the policies obtained by the bank and policy obtained separately by the complainant were surviving any liability which had arisen on account of the accident and covered under the two policies would not be washed of by just making the complainant to believe that the bank had already obtained a policy and the other Insurance Co. would just return the premium paid by them. We find it difficult to accept such a submission made by the learned Counsel for the New India Assurance Co. Ltd, and we reject it. Both the Insurance Companies in such circumstances were supposed to bear the burden of paying and compensating the complainant in case any amount is found due.
19. The driver would not have carried the passengers, overloaded the bus by carrying passengers on roof except with the consent of the complainant/respondent for carrying more passengers would fetch more money to the complainant alone. The driver was just to get his pay. We hold that the complainant overloading and carrying passengers on roof and dangerously driving the vehicle happened only with consent and knowledge of the complainant. As such, the complainant could not take advantage of his own wrong.
20. For the aforesaid reason, the impugned order cannot be sustained and it is set aside accordingly. Since the respondent No. 1 owner of the vehicle was not entitled to any relief against either of these two Insurance Companies, complaint itself being not maintainable, is also dismissed.