Heard learned counsel for the appellant.

2.      Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.      The unfolded story of the complainant is that the complainant being the owner of Ashok Leyland Tipper bearing No. OD-10A-8286 had obtained financial assistance from opposite party no.2 to purchase the Tipper and as such purchased the insurance policy from opposite party no.1 for the period covering from 28.1.2014 to 27.1.2015.

4.      It is alleged inter alia that on 18.10.2014 when the insured vehicle was coming from mines to the Utkal Alumina factory with Bauxite, it met with an accident causing severe damage to the vehicle of the complainant. Thereafter, the matter was reported to the police and insured. The complainant got the vehicle  repaired at Rs. 2,09,500/-. However, on 29.11.2014, the opposite party no.1 repudiated the claim for violation of the terms and conditions of policy as it was carrying extra loads at the time of accident.

5.      Opposite Party no.1 filed the written version denying the allegations of the complainant but admitted about the accident of the vehicle on 18.10.2014. It is contended that the opposite party no.1 deputed a surveyor who assessed the loss at Rs.81,000/-. However, they found that the vehicle was loaded with 26.17 tons of material which was over the load of 8 tons. At the time of accident, such policy condition was there, but the opposite party repudiated the claim of the complainant.

6.      Opposite party no.2 filed written version stating that the complainant is not a consumer and opposite party no.2  being the financier is not liable to pay any compensation to the complainant.

7.      After hearing the learned counsel for the parties, learned District Forum has passed the following order:-

“ Hence ordered that the complaint petition is allowed in part and the O.P.No.1 is directed to pay Rs. 60,250/- with interest @12% p.a. from the date of repudiation, i.e. 29.11.2014 towards repair charges of the vehicle and to pay Rs.20,000/- towards compensation besides Rs.5000/- towards cost of this litigation to the complainant within 30 days from the date of communication of this order.”

8.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not considering the written version with proper perspectives. According to the appellant as per policy condition, the vehicle can carry goods of 8 tons only, but the vehicle was carrying 26 tons of goods. Since the vehicle has got the overloading case which is cause of accident, the appellant would not be responsible. He submitted that the learned District Forum failed to appreciate the facts and law for which the impugned order should be set aside.

Learned counsel for appellant relied on a decision of the National Consumer Disputes Redressal Commission, New Delhi in New India Assurance Company vs. Anokhi Devi disposed of on 28.9.2016.

9.      Considered the submission of the parties and perused the learned District Forum Record.

10.    Learned counsel for the Financier-Respondent submitted that the impugned order be set aside and the opposite party being the financier is not liable to pay any compensation. He further submitted that if the Forum directs the opposite party no.1 to pay any amount, the said amount should be paid to opposite party no.2 towards recovery or realization of loan dues. He submitted that in this regard, no order has been passed by the learned District Forum.

11.    Considered the submission of both the parties and perused the impugned order and DFR. It is admitted fact that during the currency of the policy, the vehicle met the accident.

12.    On perusal of the report of the M.V.I. it appears that that the accident took place for any other reason other than mechanical failure. However, charge sheet has already been submitted in this case but the F.I.R. and the documents seized do not show that the present vehicle of the complainant  is the offending vehicle, rather it appears that the offending vehicles caused  accident  by dashing the truck in question but there is nothing to find out that this present truck met the accident due to overloading of goods. On the other hand, the Surveyor who was deputed to the spot never stated that this vehicle in question is the offending vehicle. However, he has assessed the loss at Rs. 81,000/-

13.    From the above discussion, we are of the view that the carrying of goods more than the permissible load is not the reason for causing the accident. We also relied on the decision of the Supreme Court in Laxmi Chand Vs. Reliance General Insurance disposed of on 07.01.2016. where Their Lordships have held that in absence of any facts on record that the accident took place due to overloading of the goods carrying the vehicle, insurer cannot disown its liability. The said decision also relied on  the decision of the Hon’ble Supreme Court of India in  B.V.Nagaraju vs. Oriental Insurance Co. reported in 1996 (4)SCC 647.  On the other hand, with due regard to the said decisions, we are of the view that overloading of goods or passengers cannot be the criteria to deny the liability of the insurer, where same is not the cause of accident.

14.    In view of the decision of Hon’ble Supreme Court of India, the decision of the New India Assurance Co. Ltd. (supra) by NCDRC referred to by the learned counsel for the appellant will not be applicable to the present case. Hence, we are of the view that there is deficiency in service on the part of opposite party for not settling the claim of the complainant which we have already discussed.

15.    With regard to compensation, the complainant alleged to have been paid Rs. 2,09,500/-, but no document has been filed to prove his said loss, whereas, the Surveyor computed the loss at Rs. 81,000/-. We agree with the report of the Surveyor with regard to the loss computed as if it is not a biased one. Therefore, we accept the report of the Surveyor who computed the loss at Rs.81,000/-.

16.    After going through the impugned order, it is found that the learned District Forum has computed the loss at 75% of the said  amount of Rs. 81000/- which we do not agree because there is no violation of the policy condition for reasons discussed above and  we agree with the loss computed by the Surveyor which is based on settled principles of law as enunciated by the Hon’ble Supreme Court of India. Therefore, we direct the opposite party to pay Rs.81000/- to the complainant within 45 days with interest @9% per annum from the date of the impugned order till the date of payment.

16.    The submission of the learned counsel for the appellant is that complainant is not the appellant in this case. When we have accepted the report of the Surveyor for computation of loss and there is observation of the learned District Forum at paragraph-10 that they have accepted the report of the Surveyor towards the loss at Rs. 81,000/-, the observation of the learned District Forum to accept 75% of the amount as decided by the Surveyor has no legal basis. This view is reintroduced by the fact that we have already observed above  that violation of the policy condition cannot be taken into consideration when overloading of passengers or goods is not the cause of the accident.   On the other hand, the O.P.-insurer has not settled the claim of complainant even if the Surveyor assessed the loss which is deficiency in service on the part of O.P. For such deficiency in service, it is reiterated that complainant is entitled to claim which is settled at Rs.81000/-  on the reasons as assigned in the above para.

17.    In view of the aforesaid order of the learned District Forum and in view of the discussion, while confirming the findings of the learned District Forum, we hereby modify the order by  directing  the O.P.No.1 to  pay Rs. 81,000/- as compensation to the complainant with interest @9% per annum from the date of impugned order till the date of payment to the complainant within a period of 45 days failing which it will carry interest @18% per annum. The rest of the impugned order shall remain unaltered.

18.      The appeal is disposed of accordingly. No cost.

           DFR be sent back forthwith.

          Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.