1. Aggrieved by the concurrent findings and Orders passed by the District Consumer Disputes Redressal Forum, Hassan (hereinafter referred to as the District Forum) and the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as the State Commission), the Petitioner/ Insurance Company - Manager, TATA AIG General Insurance filed this Revision Petition No. 3450 of 2018 under Section 21 of the Consumer Protection Act, 1986 (for short, the Act) against Mr. Rangaswamy (hereinafter referred to as the Respondent/ Complainant). The Complaint filed by the Complainant being Consumer Complaint No. 59 of 2014 before the District Forum was partly allowed. The relevant portion of the Order dated 30.10.2015 is reproduced as under: -

“Point No.1: On perusal of the pleadings, affidavits and exhibits marked in this case, it is undispute that the goods vehicle bearing No. KA-13-4902 was insured with the OP, the said vehicle was met with an accident on 30/31.08.2012 and was extensively damaged, that on the date of accident the policy was valid, the intimation of the accident was given to OPs, the OPs have registered the claim and surveyed the said accident through its authorized surveyor, the said surveyor assessed the damage of the vehicle to the tune of Rs. 9,37,097/-, the FIR was lodged before the concerned police, the concerned police have registered the FIR bearing No.248/12 in Crime No. 272/2012 on 31.08.2012.

10. The relevant point in controversy is that whether the OPs can repudiate the claim on the reason that six persons were carried in the goods vehicle at the time of accident in the place of 3 persons. The….

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12. We have also gone through the judgment of the Hon’ble Supreme Court titled B.V Nagaraju vs. Oriental Insurance Co. Ltd., (1996 IV SCC 647) and reproduced the relevant portions hereunder:

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13. On going through the ratio of the above judgments, we are of the view that the repudiation made by the OPs in the instant case is unjust and hold the point no.1 in Affirmative.

14. Point No. 2: In view of the above discussions made in point No.1 and on observing the other facts of the case the complainant is entitled to the claim of a sum of Rs. 9,37,097/- being the damages as accessed by the surveyor of the OPs company subject to the terms and conditions of the policy with 6% interest p.a. from the date of this Complaint, Rs. 5000/- towards the deficiency towards the cost of the Complaint. Hence we hold the point No.2 in “Affirmative in part”.

15. Point No. 3: In the result the Complaint is allowed in part and as such we proceed to pass the following

ORDER

The complaint is allowed in part.

OPs are directed to pay a sum off Rs. 9,37,097/- towards the damages as assessed by the surveyor of the OPs company subject to the terms and conditions of the policy with 6% interest p.a. from the date of the complaint to till its realization, Rs. 5000/- towards the deficiency of service and Rs. 2500/- towards the cost of the complaint within six weeks from the date of this order. Fails to pay the said amount within six weeks the complainant is entitled to get 9% interest from the date of this order for the said term.

Send the copies of this order to the parties.”

2. Being aggrieved by the Order of the District Forum, the Petitioner filed an Appeal before the State Commission, which vide Order dated 07.09.2018 dismissed the Appeal with cost of Rs.5000/-. The relevant portion of the Order of the State Commission reads as under:

“17. When there is no cogent and credible evidence on behalf of the appellant to establish the fact that overloading of the vehicle directly and mainly attributed to the accident, then the repudiation by the appellant/Company cannot be appreciated. In that view of the matter there has been a deficiency of service on behalf of the appellants. The District Forum while looking to the admitted facts has also held that carrying more passengers was not cause for the accident. Therefore, there is no material illegality or material irregularity in the impugned order. Hence, the appeal fails. Accordingly, I proceed to pass the following:-

ORDER

1. The appeal is hereby Dismissed with cost of 5000/-.

2. The impugned order dated:30.10.2015 in C.C.No. 59/2014 passed by the Hassan District Consumer Forum, is hereby Confirmed.

3. The amount in deposit shall be transmitted to the concerned District Forum to disburse the same to the complainant.

4. Send back LCR to the concerned District Forum forthwith.

5. Notify the order to the parties as well as District Forum.

3. As the District Forum and the State Commission have comprehensively addressed the facts of the case, which led to filing of the Complaint and passing of the Orders, I find it unnecessary to reiterate the same.
4. I have heard Learned Counsel for the parties and perused the record.
5. Learned Counsel for the Petitioner argued that the insured vehicle met with an accident on 30.08.2012. The seating capacity of the vehicle was limited to 3, but the vehicle was carrying 6 passengers, including the driver, thus breaching the Policy’s terms and conditions. The repudiation letter is not on record. The Insured Vehicle was registered and authorized under Section 66 of the Motor Vehicles Act, 1988 for use as a goods carriage and was not permitted to carry passengers. The loss was assessed by the surveyor at Rs.9,37,097/-. The Respondent insured the vehicle for an Insured Declared Value (IDV) of only Rs.5,14,861/-. The District Forum awarded the Respondent an amount of Rs.9,37,097/- in excess of the Insured Declared Value (IDV). The Petitioner further argued that the payment could not be made in excess of the IDV amount and in this regard, relied on the order of this Commission in Bajaj Allianz General Insurance Company Ltd. and Anr. vs. R. Henry Rajesh, 2017 SCC Online NCDRC 822. The relevant portion of the Order is as follows:

“5. Perusal of insurance policy issued by OP in favour of earlier owner C. Deepa reveals that total sum insured was Rs.1,82,250/- and insurance policy was issued for a period of one year from 13.11.2008 to 12.11.2009. Accident occurred on 05.09.2009 and learned District Forum allowed compensation of Rs. 4,29,057/- on the basis of estimate for repairs which is totally contrary to law. OP cannot be held responsible to make payment more than IDV and learned District Forum committed error in allowing claim of Rs. 4,29,057/- against IDV of Rs. 1,82,250/-.

6. Learned Counsel further submitted that he had, on instructions, submitted to this Commission on 25.02.2019 that the Petitioner was not entitled to pay more than the insured value and by the Order of this Commission of the same date deposited Rs.5 lakhs along with pendente lite interest @ 6% per annum with the State Commission. 
7. Learned Amicus Curiae for the Respondent argued that the District Forum and State Commission have given concurrent findings. Therefore, this Commission has limited jurisdiction in Revision Petition. The issue of IDV (Insured Declared Value) was not raised before the District Forum and the State Commission.  The Petitioner should not be permitted to take any additional grounds in the present Revision Petition. In this regard, he relied on the judgment of the Hon’ble Supreme Court in Galada Power and Telecommunication Ltd. vs. United India Insurance Company Limited and Another, (2016)14 SCC 161.
8. After going through the Order of the State Commission, District Forum and the grounds raised in the present petition, the central issue is whether the Insured can be given an amount beyond the agreed Insured Declared Value (IDV) under the Insurance Policy, as both the Commissions have done.  It is indisputed that the vehicle met with an accident and the Surveyor has assessed the loss.  The breach of Policy insofar as carrying three more passengers is not a fundamental breach.  In this regard, I am relying on the Order of the Hon’ble Supreme Court in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. Divisional Officer, Hassan, (1996) 4 SCC 647, wherein the Court held as under:-
9. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contribued to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody’s case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident.”

9. In the Order of the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Swarn Singh & Ors., (2004) 3 SCC 297, it was held as under:-

“49. Such a breach on the part of the insurer must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.

52. In Narvinva’ case (supra), a Division Bench of this Court observed : "...The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led..."

69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”

10. In the Order of the Hon’ble Supreme Court in Oriental Insurance Company Ltd. Vs. Meena Variyal, (2007) 5 SCC 428, it was held as under:-

“We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In case where the liability is satisfied by the insurance company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf, it may have recourse to the owner in respect of a claim available that behalf. Swaran Singh was a case where the insurance company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. There Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.”

11. In the Order of the Hon’ble Supreme Court in Lakhmi Chand Vs. Reliance General Insurance (Civil Appeal Nos.49-50 of 2016) decided on 7^th January, 2016, it was held as under:-

"19. Accordingly, we allow these appeals and restore the judgment and order of District Forum. Further, we award a sum of Rs.25,000/- towards the cost of the litigation as the respondent-Company has unnecessarily litigated the matter up to this Court despite the clear pronouncement of law laid down by this Court on the question with regard to the violation of terms and conditions of the policy and burden of proof is on the insurer to prove the fact of such alleged breach of terms and conditions by the insured.

20. Since we have restored the judgment and order of District Forum, we direct the respondent-Company to pay the amount awarded by the District Forum with interest and the cost which we have awarded in these proceedings within six weeks from the date of the receipt of the copy of this judgment.”

          So, it goes without saying that the Insured is in his rights to get the insurance amount as per the Policy.  No such proof has been filed by the Petitioner.  I do not see how the risk has increased and therefore the breach is not fundamental.

12. A bare perusal of the Insurance Policy reveals that the total sum insured was Rs.5,14,861/- and the Insurance Policy was issued for a period of one year, thereby limiting the Insured’s claim to a maximum amount of Rs.5,14,861/- within the specified coverage period. Unfortunately, an accident took place on 30.08.2012 and the Insurance Company rejected the claim of the Respondent. The District Commission allowed the Complaint by awarding Rs.9,37,097/- to the Respondent on the basis of Surveyor’s report which was later confirmed by the State Commission. The Petitioner cannot be held responsible to make a payment of more than the IDV and the Commissions committed an error in allowing a claim of Rs.9,37,097/- against the IDV of Rs.5,14,861/-.  I am relying on the Order of the Hon’ble Supreme Court in the matter of Oriental Insurance Co Ltd. Vs. Sony Cheriyan, (1999) 6 SCC 451, decided on 19.08.1999, wherein the Court held that;

“The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms of agreements have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.”

The above ruling has been reaffirmed by the Hon’ble Supreme Court in the matter of United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644.

13. In view of the aforesaid discussion, the Revision Petition is disposed of by modifying the Orders of the State Commission and District Forum directing the Petitioner/ Insurance Company to pay Rs.5,14,861/- to the Respondent/ Complainant towards the claim amount under the Insurance Policy @ 8% interest p.a. from one month after the submission of Surveyor’s Report within six weeks till making payment, failing which the rate of interest payable shall stand enhanced to 12% p.a.  for the same period.  The Insurance Company shall pay an amount of Rs.50,000/- to the Respondent/ Complainant towards litigation cost.
14. The Petitioner/ Insurance Company shall pay the aforesaid amount after deducting the amount deposited by it with the State Commission and released to the Respondent/ Complainant.  The interest on the amount deposited with the State Commission shall be upto the date of deposit.  However, for the balance amount, which was not deposited and which comes to Rs.14,861/-, the interest rate shall be from respective dates of deposit till realization.

15. Pending applications, if any, stand disposed of.