JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant/petitioner hired a vehicle bearing registration no. MH-15-CK-412, for transporting eggs.  On 15.07.2014, when the said truck with eggs loaded on it, reached near Village Dasia, a blue-bull came in front of the truck carrying eggs.  The driver tried to avoid hitting the animal and in the process, the vehicle over turned, thereby damaging eggs worth Rs.4,97,310/-.  Since the said goods had been insured by the petitioner with the respondent, a claim for re-imbursement in terms of the said insurance policy was lodged.  The claim however, was repudiated vide e-mail dated 11.08.2014 which, to the extent it is relevant, reads as under:

“We received surveyor report in this claim.  We found overloading in this subject loaded consignment vehicle.

Policy is having condition in for overloading which is read as “It is a condition of policy that weight of cargo should not exceed registered capacity of vehicle.”

In Kg.

Vehicle was loaded with 12701 Kg.

We are enclosing relevant attachment for your ready reference.  Claim is not acceptable.”

          Being aggrieved from the repudiation of the claim, the petitioner/complainant approached the concerned District Forum by way of a Consumer Complaint.  The complaint was resisted by the insurer primarily on the grounds on which the claim had been repudiated. 

3.      The District Forum having allowed the complaint, the respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 24.01.2017, the State Commission allowed the appeal and consequently dismissed the Consumer Complaint.  Being aggrieved, the petitioner/complainant is before this Commission. 

4.      It is an admitted position that the GVW of the vehicle being 11900 Kg and unladen weight being 4790 Kg, it was authorized to carry goods weighing not more than 7110 Kg.  However, the actual weight of the goods being carried by the vehicle was 12702 Kg.  Therefore, there was substantial overloading of the goods in the said vehicle.  Drawing my attention to the insurance policy issued by the respondent, the learned counsel for the respondent submits that it was a condition of the policy that the weight of the cargo should not exceed the registered carrying capacity of the carrying vehicle and since the goods being actually carried were much more than the registered carrying capacity, it amounted to a breach of the policy and therefore, repudiation of the claim was justified.  He also submits that there is a direct nexus between the overloading of the vehicle and the accident resulting with an overloaded vehicle.  The learned counsel for the complainant/petitioner however, relies upon the decision of the Hon’ble Supreme Court in Lakhmi Chand Vs. Reliance General Insurance Company Ltd. (2016) 3SCC 100, in support of his contention that the claim could not have been rejected on account of overloading of the vehicle.  He also submits that the accident had no nexus with the load of the vehicle.

5.      A perusal of the decision of the Hon’ble Supreme Court in Lakhmi Chand (supra) would show that the vehicle which met with an accident in that case was also a goods carrying vehicle which was permitted to carry 1+1 passengers in addition to the goods.  However, as many as five persons were found travelling in the said goods vehicle aWWWWt the time it met with an accident.  Allowing the claim, the Hon’ble Supreme Court inter-alia observed and held as under:

“It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.”

6.      The learned counsel for the respondent relies upon the decisions of this Commission in RP No. 3960 of 2013 DARCL Logistics Ltd. Vs. ICICI Lombard GIC Ltd. & Ors., decided on 02.11.2015; RP No.2636 of 2010 National Insurance Company Limited Vs. Usha Devi, decided on 13.07.2011 and RP No. 3228 of 2012 Delhi Assam Roadways Corporation Ltd. Vs. United India Insurance Co. Ltd., decided on 03.09.2013.   However, considering the decision of the Hon’ble Supreme Court in Lakhmi Chand (supra), which has not been considered in any of the above referred decisions of this Commission all of them having been rendered before Lakhmi Chand (supra).  I am inclined to hold that unless it may be proved that unless a nexus between the overloading of the truck and accident in which the goods were damaged is proved, repudiation of the claim as a whole was not justified. 

7.      In the present case, a blue-bull came in front of a moving truck.  Obviously, the blue-bull would have come all of a sudden on the road giving very little time to the truck driver to apply the brakes.  If an animal all of a sudden comes in front of a moving vehicle, it would be difficult to avoid an accident of this nature irrespective of whether the vehicle is passenger vehicle or goods vehicle and whether it is overloaded or not.  There is no evidence to even suggest that the animal was at such a distance from the vehicle that the driver had sufficient time to apply brakes in time and had the vehicle not been overloaded, he would have been able to bring the vehicle to a halt before it hit the animal.  Therefore, the insurer has failed to prove any nexus between the overloading of the vehicle and cause of the accident. 

8.      For the reasons stated hereinabove, the impugned orders cannot be sustained.  However, considering that the vehicle had been overloaded, I feel that the claim should be paid on a non-standard basis instead of paying in its entirety.  The insurer is therefore, directed to pay 75% of the amount assessed by the surveyor alongwith interest on that amount @ 9% per annum w.e.f. six months from the date of lodgment of the claim till the date of payment.  The Revision Petition stands disposed of accordingly.