Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> 1. It is the case of the complainant is the owner of the goods carrying auto bearing No.KA.10/2438 which was insured with the Opposite Party. The said vehicle met with an accident on 27.08.2006. The complainant lodged a claim with the Opposite Party for Rs.61,607/- which was the estimated cost of repairs. The claim was repudiated on the ground that the vehicle was over loaded at the time of accident, thereby contravening the terms of the policy.<br /> 2. The complainant had filed his complaint against the repudiation made by the Opposite Party asserting that the vehicle had not been over loaded and the police have alleged over loading only to help the rider of the two wheeler which was involved in the accident. He further says that the police have not weighed the vegetables being carried in the auto at the time of accident. The complainant claim Rs.61,607/- with interest at 12% p.a. from the date of filing of complaint till the date of payment.<br /> 3. The Opposite party in his version has admitted that the complainant had a valid insurance cover as on the date of accident. It is, also, admitted that the claim was repudiated for violation of the terms of the policy arising from over loading of the vehicle and not possessing a valid driving licence at the time of accident. It is contended that the complainant was given an opportunity to explain about the over loading alleged by the police but he failed to give proper explanation.<br /> 4. From the above pleadings, the following points arise for our consideration.<br /> I. Whether the complainant proves that the repudiation of his insurance claim amounts to deficiency in service?<br /> II. Whether the Opposite party proves that the repudiation has been made properly?<br /> III. What relief or order?<br /> 5. Heard the learned counsels and perused the documents. We findings are as under:-<br /> Point No.I : In the negative.<br /> Point No.II : In the affirmative.<br /> Point No.III : As per final order <br /> REASONS<br /> <br /> 6. Points No.I & II:- For the sake of convenience both points have been taken up for consideration together. Since most facts are admitted by both parties we may restrict our discussion to points of difference only. The repudiation letters dated 28.11.2006 and 29.12.2006 are identical and states as under:-<br /> “The manufacturer designs the vehicle for carrying only the specified amount of load, which is mentioned legally, as well as by the manufactures. Therefore the vehicle was deliberately subjected to overload beyond its capacity hampering the efficiency of the drives and increase the risk, which ultimately contributed to the accident as a result of loss of control”.<br /> <br /> Before repudiating, the Opposite party had issued a show cause notice to the complainant. The complainant in his letter dated 09.10.2006 has reiterated that he had not over loaded the vehicle and the police had made false allegation in this regard.<br /> 7. The repudiation is based on clause 2 in section 1 of the terms of the policy which reads as under:-<br /> “The company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damage caused by over loading --------------“<br /> 8. The Opposite Party has relied upon a number of decisions to justify the repudiation. First of them is the decision of the Apex Court in National Insurance Company Ltd., -Vs- Laxmi Narain Dhut. The Hon’ble Supreme Court has distinguished the applicability of Section 149 of the Motor Vehicles Act in the case of a 3rd Party claim and own damages claim. Thus, the Court has held that the decision in National Insurance Company Ltd., -Vs- Swaran Singh has no application to own damage cases. It is further held that the concept of purposive interpretation has no application to cases relatable to Section 149 of the Motor Vehicles Act. In other words, if the driver of the vehicle did not possess a valid driving license to drive a goods vehicle but had a license to drive a vehicle of similar nature, he cannot take shelter under Swaran Singh’s case in which it is held that unless the breach of the condition pertaining to driving license is so fundamental for the cause of the accident, the insurer cannot avoid the liability. The case on hand therefore false outside the scope of Swaran Singh’s case. In the instant case, the Opposite Party has alleged the driver of the complainant’s vehicle did not possess a valid license to drive a goods auto. The complainant has stated that it is the practice of the Regional Transport Office to issue a badge number to drivers authorized to drive goods auto. From the perusal of the copy of the driving license of Sri.Ezaz Pasha, the driver at the time of accident, it is seen that he was authorized to drive three wheeler passenger vehicle. It is mentioned that metal badge had not been issued to him. The badge number found in the license is the number allotted to drivers of three wheeler passenger vehicle and not to those who are authorized to drive three wheeler goods vehicle. This contravenes Section 149 (2)(d)(ii) of the Motor Vehicles Act. However, if the claim was 3rd party claim the decision in Swaran Singh’s case could have been invoked. Since that is not the case here, we rely upon the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., -Vs- Laxmi Narain Dhut and hold that there is a breach of clause – 2 of Section 1 of the terms of the policy. Thus, the Opposite Party is entitled to repudiate the claim. <br /> 9. It is seen from the repudiation letters that the repudiation was done on the ground of breach of clause – 2(a), Section 1 of the terms of the policy. The said clause refers to over loading. As rightly pointed out by the complainant the sacks of vegetables being carried in the auto was not weighed after the accident. The Opposite Party cannot rely upon the charge sheet or the mahazar to repudiate the claim. It is seen from the mahazar that the vegetable sacks were sent for weighing. However, there is no report of the weight of the vegetables being carried in the auto. <br /> 10. In view of the fact that the repudiation of the claim of the Opposite Party is based on the judgment of the Hon’ble Supreme Court rather than breach of clause pertaining to over loading, we conclude that there is no deficiency in service on the part of the Opposite Party and that the repudiation is proper. It is not necessary to refer to the other decisions filed by the Opposite Party to press home his contention. We therefore answer point no.I in the negative and point no.II in the affirmative. In the result, we pass the following order.<br /> <br /> ORDER<br /> <br /> 1. Complaint is dismissed.<br /> 2. Parties to bear their own costs. <br /> 3. Give a copy of this order to each party according to Rules.<br />