Heard learned counsel for the appellant. None appears for the respondent.

2.      Here is an appeal 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 case of the complainant in nutshell is that the complainant being owner of Mahindra & Mahindra Mini Bus bearing Regd. No.OR-02 C/4161 has purchased the insurance policy from the OP for the period from 12.2.2001 to 12.2.2002. It is alleged inter alia that on 16.4.2001 the vehicle met accident near Budha Budhi Ghati of Hindol Narsinghpur road causing damage to the vehicle. The matter was reported to the police and the insurer. The police made investigation but the insurer did not settle the claim. After waiting for quite considerable period, when the OP did not settle the claim, the complainant filed the complaint.

4.      OP filed written version stating that they have received the claim and they admit that during currency of the policy the vehicle met accident. It is further averred that OP has asked relevant documents from the complainant but they did not submit for which the OP closed the case. Thus, they have no any deficiency in service on their part.

5.      After hearing learned counsel for both sides, learned District Forum passed the following order:-

                             “xxx   xxx   xxx

            The complaint petition is allowed.

The opp.party is directed to pay a sum of Rs.62,500.00 (Rupees sixty two thousand five hundred) only to the complainant along with interest @ 10% p.a. from the date of repudiation to till actual payment. The opp.party is further directed to pay a compensation of Rs.5,000.00 (Rupees five thousand) only towards mental agony, harassment, deficiency in service and cost of litigation.

Carry out the order within 4 weeks from the date of receipt of this order, failing which the above awarded amount will carry on penal interest @ 4% p.a. from the date of default to till the date of compliance of order.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by allowing the complaint when there is proof of over loading of the passengers at the relevant time. According to him the accident took place due to over loading for which the complainant is not entitled to any insurance compensation. He further submitted that learned District Forum has not applied judicial mind to the facts and law involved in this case because admittedly the complainant carried 30 to 32 passengers exceeding capacity of 16 passengers and the accident took place as such due to  such over loading. He also admitted that the rash and negligence of the driver is also connected to the over loading. Therefore, the learned District Forum ought to have passed order in favour of the OP rejecting the case of the complainant. So, he submitted to allow the appeal by setting aside the impugned order.

7.      Considered the submission of learned counsel for   the appellant and perused the DFR including the impugned order.

8.      It is settled in law that the complainant  should prove the deficiency in service on the part of the OP.

9.      In the instant case, it is admitted fact that the vehicle of the complainant during currency of the insurance policy has met accident. It is also admitted fact that police has made investigation and found that the accident took place due to rash and negligence driving of the driver. It is also admitted fact that the bus was carrying the passengers more than the cut off limit of the vehicle.

10.    The learned District Forum has held that this accident took place due to rash and negligence driving of the driver. This rash and negligence driving has no nexus with the over loading of the passengers carried by the vehicle. Learned counsel for the appellant could not prove that the over loading was the cause of accident. Also they failed to prove that rash and negligence driving was due to over loading of the driver.

11.    It is reported in the case of B.V.Nagaraju VRS. Oriental Insurance Co.Ltd. Divisinal Office, Hassan 1996 SCC (5) 71 where it is clearly  observed that if the accident is not caused due to over loading the insurer cannot deny the claim on the ground that the policy condition is violated. In the instant case, since the over loading is not the cause of accident and the accident took place  due to negligence and rash driving of the driver, we hereby agree with the finding of the learned District Forum.

12.    We have gone through the surveyor’s report. The surveyor has also computed the loss at Rs.62,500/- which has been awarded by the learned District Forum. No  doubt, the surveyor’s report should be the basis for settlement of the claim. Therefore, the impugned order passed by the learned District Forum is hereby confirmed. The appeal being devoid of merit stands dismissed. 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.