KERALA STATE CONSUMER DISPUTES             REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL 622/2010

DATED. 10.6.2011

PRESENT:-

 JUSTICE SHRI.K.R.UDAYABHANU     :          PRESIDENT

APPELLANT

The Oriental Insurance Co. Ltd.

Represented by its Divisional Manager, Thakaraparamp,

Trivandrum.

                 (Rep. by Adv.  Sri. V. Manikantan Nair)

                                           Vs

RESPONDENT

1.       P.S. Suresh Kumar,

S/o P.V. Sugathan,

Pallikkal House, Padilikkad,

Kottekkad, P.O., Palakkad.

2.       M/s. Radhia Motors, Ponnkunnam,

Guruvayoor road, Trichur-2

                          (R1 Rep. by Adv.  Sri. Santhosh

JUDGMENT

JUSTICE K.R. UDAYABHANU     ;    PRESIDENT

The appellants are the opposite parties/Insurance Company in C.C. 145/08 in the file of CDRF, Palakkad.  The appellants are under orders to pay a sum of Rs. 2,61,860/-with interest at 12% from the date of application till the date of the order and Rs. 2000/- as cost and if the amount is not paid within one month to pay  interest at 9%.  

The case of the complainant is that the Tempo Trax vehicle owned by him and covered by the Policy of the opposite parties met with an accident on 28.10.07.  All the passengers sustained injuries and two of them died.   According to the complainant, he was using the vehicle for his personal purpose.  He has effected repairs to the vehicle amounting to Rs. 2,90,907.40 consequent to this accident.  The opposite party has repudiated the claim on the ground that the vehicle was used for hire or reward for M/s. Indian Express Group of publication at the time of accident.  The above allegation is false.  The complainant has sought for a sum of Rs. 3,40,907.40 under different heads and costs.

            The opposite party has contented that at the time of the accident, the complainant was driving the vehicle  or contract carriage  The coverage was for a private vehicle and the vehicle was used for commercial purposes.  There is violation of the conditions of the policy.  Hence  the complainant is not entitled for the claim.

            The evidence adduced consisted of the testimony of Pw1, Dw1 Exts. A1 to A11 and B1 to B9. 

We find that the crux of the matter is the contention that the vehicle was used for commercial purposes at the time of the accident.  It was not disputed that the coverage is for a private vehicle, to be used for private purposes.  Seating capacity including the driver is ten as can be seen from Ext. A4, R.C. Book.  Ext. A3, Policy would show that the policy is with respect to a private car.  Appellants/opposite parties have laid stress on Ext. B9 First Information Statement in the matter rendered by Dw1 who was a passenger in the vehicle.    In Ext. B9, which is the signed statement of Dw1, mentions that he has engaged in the distribution of Indian Express Newspaper and that for the last two months he has working with the complainant  in the particular jeep/ vehicle involved.  It is further stated that at the time he was traveling in the jeep for taking Indian Express newspaper bundles from Ernakulam.  Apart from him there was one Kannappan who was working as cleaner and four more persons also boarded the jeep from Palakkad town.  The above persons also were going to Ernakulam.  The jeep skidded and capsized hitting on a compound wall.   Himself, cleaner and the driver who is the complainant sustained injuries and two persons who boarded the jeep at Palakkad died.  Ofcourse Dw1 who rendered Ext. B9 statement has stated that he just signed in Ex. A9 as told by the police.  We find that there is no explanation as to why Dw1 affixed his signature in Ext. B9.  No motive is alleged against the investigating officers in the police case. Ext. B9 has been recorded some what soon after the accident.  We find no reason to disbelieve Ext. B9 document.  As per Ext. A4, the R.C. Book of the vehicle has been purchased on 24.3.2006.  The incident is dated. 28.10.2007. So long it appears that the complainant was using the vehicle with the coverage as private car.  There is permit violation also.  The contention of the complainant that he was using the vehicle for private purpose appears not true. 

The counsel for the respondent/complainant has relied on the decision in Amalendu,  Sahu Vs. Oriental Insurance Company Ltd., A. I. R. 2010 SC 2090 wherein the Supreme Court has directed to pay a consolidated sum  although there was violation of the conditions of the policy.  The Supreme Court has also  laid the guide lines in cases where the claims are to be settled on payment of 75% of the admissible claim on non standard basis ie, in cases whether there are overloading of vehicles beyond licensed carrying capacity and also in cases of any  other breach of warranty/ condition of policy including limitation as to use.  In the instant case we find that there is serious violation of the policy conditions.  All the same there is no reason, not to apply the ratio of the decision in Amalendhu Sahu case (o.p.cit).   Taking in to consideration the gravity of the violation we find that it would be reasonable to direct the opposite parties to pay only 50% of the eligible amount, the insurance company is directed to examine the claim and pay 50% of the eligible amount to the complainant.  The amount shall be paid within three months from the date of receipt of this order, failing which the complainant will be entitled for interest at 12% on the eligible amount from 10.6.2011,  the date of this order. 

            In the result, the appeal is allowed in part as above. 

            The office will forward the L.C.R. to the Forum along with the copy of this order.    

                                           JUSTICE K.R. UDAYABHANU     ;    PRESIDENT

ST