1. THE complainant is a registered owner of a Tata Truck bearing No. KA-13-438, a goods vehicle. He had insured the said vehicle with the opposite party, that is, the Oriental Insurance Co. Ltd., Divisional Office, Hassan, under Policy No. 42260/3/O/MV/91/ 00924, as per Ex. C-20, under comprehensive policy covering the risk upto the limit of Rs. 2,09,000.00. This policy was valid for the period from 24/8/1990 to 23/8/1991. THE complainant had paid the full premium of Rs. 5,102.00 and the estimated value of the vehicle, as shown in the policy issued by the Insurer, is Rs. 2,09,000.00. THE policy, in turn, shows the vehicle is of 1990.
2. THE said vehicle, so insured with the opposite party, met with an accident on 5.8.1991, within the limits of Hassan Rural Police Station. THE police at Hassan Rural Police Station, registered a case in crime No. 347/91 under Sections 279,337and 304(A) of I.P.C. and issued F.I.R. as per Ex. C-1.
The complainant immediately thereafter made a report of occurrence to the opposite party and submitted a claim form, as per Ex. R-1.
The complainant got the damage to the vehicle estimated and got it repaired with Auto agencies, as per Exs. C-7 to C-18, when the opposite party failed to settle the claim at an early date.
3. THE opposite party did not settle the claim made by the complaina, even though it got surveyed the damage, as per Surveyor Report, as per Ex. R-2 and repudiated the claim of the complainant, as per Ex. C-2 on certain untenable grounds.
The complainant, on the basis of these averments, claimed a sum of Rs. 87,170/- towards repair charges and further sum towards loss of income, interest etc.
4. THE opposite party filed its statement of objections. THE opposite party admitted that the vehicle was insured with them; it was a comprehensive policy as per Ex. C-20. It also admitted that the vehicle met with an accident, as averred by the complainant, on 5.8.1991, during the currency of the policy period, Ex. C-20. It also admitted the fact of the said damaged vehicle being Surveyed, inspected and assessed by its official surveyor, as per Ex. R-2. It did not deny the fact that the complainant got the vehicle repaired with certain agencies, as per Exs. C-7 to C-18. THE opposite party denied the claim of the complainant on the sole ground that some unauthorised persons were carried in the vehicle at the time of accident, in violation of the policy condition as regards to "Limitations as to use". THE material averments of the opposite party, in this regard, are at paras 2 and 3 of its version, are as under:
"2. However, the FIR filed immediately after the accident clearly reveals that the petitioner was using the goods vehicle for the purpose of carrying passengers and two of the passengers in the vehicle also died. By carrying passengers in the goods vehicle, the petitioner has clearly contravened the provisions of the Motor Vehicles Act, and the terms of the Policy and has thereby dis-entitled himself to all the benefits under the policy. 3. It is respectfully submitted the petitioner having thus committed breach of the terms of the policy is not entitled to any of the benefits under the policy. His claim therefore is clearly untenable in law."
At the enquiry, the complainant, filed his affidavit in evidence and got Exs. C-1 to C-20 marked in evidence. The opposite, party did not lead any evidence, filed documents as per Exs. R-1 and R-2 in evidence. Having regard to the pleadings of the parties as also the evidence placed on record, the points that arise for our consideration are -
(1) Whether the complainant acted in violation of the policy condition as regards "Limitations as to use" by carrying unauthorised persons in the vehicle at the time of the accident? (2) What is the market value of the vehicle as on the date of the accident? (3) What is the claim to which the complainant is entitled to?
Regarding Point No. (1): The opposite party repudiated the claim of the complainant only on the ground that the complainant acted in violation of the policy condition. The repudiation letter, Ex. C-2, reads as under: "With reference to above claim, we wish to inform you as under: We have referred the above Own Damage claim file to our Regional Office, Bangalore, and in reply, they have advised us as follows:-
"As per FIR, 9 passengers travelled in the vehicle of whom 2 persons died and the others sustained injuries. This contravenes the provisions of the Motor Vehicles Act. The Goods vehicle has been used more as a Passenger vehicle rather than a Goods vehicle. Under such circumstances, competent authority regrets to consider the claim. As such, we regret to express our inability to consider the Own Damage claim, and are therefore treating the file as closed."
5. THE complainant had issued a legal notice, as per Ex. C-3, claiming settlement of his claim, wherein he had specifically averred at para 3 of the said notice, that the persons who were travelling in the vehicle at the time of accident had hired the vehicle for transporting their goods.
6. THE opposite party had issued a reply notice, as per Ex. C-5, to the complainant. THE opposite party had not denied the fact that the persons who were travelling in the vehicle at the time of accident, had hired the vehicle for transporting their goods.
The opposite party did not lead any evidence to show that the persons travelling in the vehicle at the time of accident were unauthorised passengers.
The clause, in the policy -Ex. C-20, pertaining to "Limitations as to use" reads, thus:
"Limitations as to use: Only for the carriage of goods within the meaning of the Motor Vehicles Act, 1986. The policy does not cover - (1) Use for organised racing, pace-making reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing of any one diabled mechanically propelled vehicles. (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in numbers coming under the purview of W.C. Act, 1923."
This would go to show that carrying of employees "other than driver" not exceeding 6 in numbers is permitted, as per condition contained therein. It is clear from the material placed on record that the complainant has not acted in violation of the condition of the policy in carrying the persons who had hired the vehicle. Even assuming for the sake of argument, that 9 persons travelling in the vehicle were passengers, it cannot be a ground for Insurance Company to repudiate the contract as the fact of their being passengers or coolies does not make any difference to the risk involved. These persons were in no way concerned with the cause of the accident nor have they contributed to the risk in respect of the loss caused to the vehicle. The complainant has not claimed any compensation in respect of his liability to the persons travelling in the vehicle. A similar question arose in Jagdish Harilal Thakkar v. The New India Assurance Co. Ltd., reported in II. (1992) CPJ page 497 wherein the Gujarat State Commission has observed as follows:"13. Now if we minutely consider the provision regarding the limitation as to use it appears to us that the vehicle should not be used for carrying passengers. In other words, it should not be used as a passenger carrying truck at the question raises is if a lift is given by the Driver/cleaner without the consent or knowledge of the owner will it amount to using of the vehicle as a carrier of passengers. If some persons are taken either to help them or to oblige them will such a breach of condition totally discharge the liability of the Insurance Company? Let us consider this point from different angles. That under the policy the insured was entitled to carry six employees excluding the driver and if total six persons are travelling in the truck, has it increased any risk for the Insurance Company or were these persons were in any way connected with the cause of the accident? Our answer is no. The Insurance Company has not raised the contention that the truck was loaded with more than 12 tonnes of goods. That taking of these three or four persons has contributed to the cause of accident or has increased any additional liability to the company? The accident has been caused by the truck coming from the opposite direction directly dashed with the insured truck without any fault of the driver/cleaner. Even assuming for the sake of argument that taking of these 3/ 4 persons was strictly not provided, even then merely because some persons were taken by the driver and cleaner without the knowledge of the owner who had not contributed increase of risk or is not connected with the cause of accident, a contractual liability of this nature for which a very high premium has been paid by the insured cannot be repudiated by the Insurance Company. It was merely an irregularity which is not fundamental in nature so as to put an end to a contract. This type of bread will never give a right to a contracting party to rescind the contract. He might at the most claim some relief or concession in the damage."
We are in respectful agreement with the said observations. So we hold and record Point No. 1 in favour of the complainant.7. REGARDING Point Nos. (2) & (3): The estimated value of the vehicle, as per Ex. C-20, is Rs. 2,09,000/- as on the date of issue of policy, that is, on 24.8.1990. This estimated value of the vehicle has not been denied or disputed by the opposite party when the proposal was submitted.
The complainant has produced Exs. C-7 to C-18 to show that he had spent various amounts for the repair of the said damaged vehicle and he has claimed a sum of Rs. 87,170/- in that regard. The opposite party, has in this regard at para 4 of its version, averred thus: "4. It is emphatically denied that the petitioner incurred an expenditure of Rs. 87,170/- for getting his vehicle repaired. As per the report of the Surveyor appointed by the respondent, the repairs including replacements could not have exceeded Rs. 75,700/-."
8. THE opposite party has produced survey report, as per Ex. R-2, that shows the details of the damage sustained to the vehicle. THE opposite party, as it is evident from the version at para 4, has stated that repairs including the replacement of certain parts to the vehicle would not be more than Rs. 75,700.00.
Having regard to these facts, in our opinion, the complainant is entitled for this sum of Rs. 75,700/- towards repair charges.
The complainant has produced Ex. C-19 - the statement of accounts of H.P.L. No. 2/1990 from Corporation Bank, Madabalu, that shows that the complainant had raised loan from the Bank for the purchase of the vehicle and was paying interest on the said loan. The complainant is a poor person and was plying the vehicle to earn his livelihood. The Insurance Company is enjoined with the duty to investigate the claim of the claimant with utmost care and diligence. The circumstances would go to show that the opposite party failed to perform its duties in settling the claim diligently without any loss of time. In the circumstances, we have no other alternative except to compensate the claimant for the losses which he has suffered, by awarding interest on the amount of Rs.75,700.00 at 18% p.a. ORDER In the result, therefore, this complaint is allowed. The opposite party, the Oriental Insurance Co. Ltd., shall pay to the complainant a sum of Rs. 75,500.00 together with interest at 18% p.a. on the said sum from the date of accident, that is from 5/8/1991 till the date of payment to the complainant. The opposite party shall also pay to the complainant the costs of these proceedings which we quantify at Rs. 2,000/- (Rupees two thousands only). The opposite party shall pay the said sums so awarded to the complainant within a period of six (6) weeks from this day. Complaint allowed with costs.
