1. THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 1.8.2012 in Appeal No. 1522 of 2011 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission''). The State Commission has wrongly dismissed the appeal of the Petitioner filed against the order dated 8.9.2011 passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum''). Brief facts of the case are: The Complainant, Mr. Vishnu Singh, insured his Tavera Car with the OP/Respondent, for the period 7.6.2009 to 6.5.2010. Mr. Amrit, a friend of the Complainant, on 26.9.2009, took the vehicle along with his driver to Ambala, when the car met with an accident, while returning from Faridabad, on 27.6.2009. All the occupants of the car, including the driver, died in the accident. FIR was registered with the Police Station Samalkha, District Panipat. The Complainant submitted the claim with the OP for the damages. The OP repudiated the claim on the ground that the Complainant was using the vehicle for hire and reward, which was against the terms and conditions of the insurance policy. Therefore, the Complainant filed the Complaint before the District Forum.
2. THE District Forum partly allowed the complaint and directed the OPs to pay Rs. 3,30,726 to the Complainant, within 2 months and Rs. 2,200 as litigation expenses.
Aggrieved by the order of the District Forum, OPs filed the First Appeal before the State Commission, which was allowed and dismissed the complaint.
3. AGAINST the order of State Commission, complainant preferred this revision.
4. WE have heard the Counsel for the parties and perused the records on file. The Counsel for the complainant denied that, the vehicle was used for the purpose of hire and reward. The investigator''s report is based on the statement of the father of deceased Mahesh Kumar. It was total hearsay evidence; there was no record that who called him, the telephone number etc. Hence the report of investigator Bhola and Associates ignored the facts and statement. The affidavit of Mr. Anurag Chaturvedi, the General Manager of AJJ SAMAJ clearly states that, Mr. Amrit and Mahesh Kumar are the employees in their office and the office has not hired any car. Also, the father of Amrit, has submitted an affidavit that Mr. Sonu Bhola has never recorded any statement nor he has signed any statement. The report of the investigator is not worth -consideration, which is based on wrong facts of the case. The Counsel further submitted that, the MACT, Panipat, in case No. 47/2011, and the MACT Karkardooma, Delhi in MAC petition No. 273/2010 allowed the claim in favour of the plaintiffs'' relatives of deceased.
We have perused the repudiation letter of the OP, which do not show the extent of damage to the vehicle, but the claim was rejected on the basis of limitation of use of the vehicle. We have perused the copy of FIR, which reveals that all the occupants of the car including, the driver, died at the spot and the bodies were removed with great difficulty and with the help of TAC. This clearly indicates that car was badly damaged and which was beyond repair. Hence, in our opinion, report of mechanic is not necessary. The OP ignored such total damage of vehicle, and rejected the claim, on the ground that the car was being used against the terms and conditions of the policy. Hence, we are of considered view that the car was totally damaged and it was beyond repair, even if no report of mechanic to that effect was brought on record by the Complainant. If, we put reliance upon the law laid down by Hon''ble Supreme Court in Amalendu Sahoo v. Oriental Insurance Co. Ltd., : II (2010) CPJ 9 (SC) : II (2010) SLT 672, the Complainant is entitled to an amount equal to 75% of the insurance amount as compensation for damages to his car accident. The insured value of the car was Rs. 440,968, and 75% of it, will be Rs. 3,30,726.
5. WE have referred to two other judgments of the Hon''ble Supreme Court reported in National Insurance Company Ltd. v. Nitin Khandelwal, : IV (2008) CPJ 1 (SC), wherein it was held that, the insurance company is liable to indemnify the owner of the vehicle assuming that there was a breach of condition of the insurance policy, in which event the claim ought to be settled on non -standard basis.
6. IN the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., : I (1997) ACC 123 (SC) : II (1996) CPJ 28 (SC) : (1996) 4 SCC 650.
"Even 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."
(4) Also another observation was made in same case that - -
(a) Motor Vehicles Act, 1988 - - Sections 147 and 149 - - Breach of carrying humans in a goods vehicle more than the number permitted in terms of the insurance policy - - Held, cannot be said to the insurer to deny indemnification unless there were some factors which contributed to the causing of the accident - - Exclusive term of the insurance policy must be read down to serve the main purpose of the policy - - Motor Vehicles Act, 1939, Section 96.
As per the foregoing discussion, we do not agree with the report of surveyor, Mr. Sonu Bhola that the car was being used as a ''taxi'' on hire and reward. He has gathered such information from the neighbours of Amrit, as well as from other persons of his village. Thus, it was hearsay evidence and totally based on presumptions. He has not touched the heart of this case, did not comment about the extent of damage of the car in his survey report. Such report is just evasive and it is with an intention to support the OP only. We consider, it as total loss and allow the compensation at the tune of IDV Rs. 4,40,968. Accordingly we direct the OP to pay Rs. 4,40,968 along with the interest @ 6% p.a. from the date of accident. The order shall be complied within 90 days from the date of receipt of this order otherwise, it will carry interest @ 9% p. a. till its realisation. Therefore, set aside the order passed by the State Commission and restore the order of District Forum. The revision petition is allowed. No order as to costs.
