Sri Utpal Kumar Bhattacharya, Member

Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellants/OPs challenging the judgment and order dated 26.12.2014 passed by the Ld. District Forum, Malda in DFC Case No.89/2014 allowing the said complaint in part with costs.

Both the Appellants/OPs were directed in the impugned order to pay jointly and severally to the Respondent/Complainant an amount of Rs. 5,00,000/- within 30 days from the date of the impugned judgment and order, failing which, as ordered, the said amount would carry interest @ of 9% till realization from the date of filing the case.

The Appellants/OPs were also directed to pay a litigation cost of Rs. 5,000/- to the Respondent/Complainant.

The case of the Respondent/Complainant, in short, was that the Respondent/Complainant, an unemployed youth, purchased one truck for earning the livelihood for self and members of his family. He had his vehicle insured with the Appellant/OP Insurance Company under the policy having coverage for the period with effect from 26.05.2014 to 25.05.2015 till midnight. The IDV was assessed and recorded in the policy document as Rs. 8,64,500/-.

The said vehicle met with an accident near Khosal village under P.S Gazole, District Malda on 11.07.2014 which was within the period of validity of the insurance. A ten wheeler lorry had allegedly dashed the subject vehicle reaching the subject vehicle serious damages. The Respondent/Complainant informed the Appellants/OPs about the incident making a formal communication. The Appellant/OP Company, on receipt of the information demanded from the Respondent/Complainant the relevant papers through its communication dated 24.07.2014. The Respondent/Complainant also sent the relevant papers as per demand. An FIR u/s 279/338/304 (A) of the IPC in respect of the incident was also lodged with the Gazole P.S, in the District of Malda, under No. 437/2014 on 12.07.2014.

The Appellants/OPs, however, did not take any action against information of the incident and ultimately through their letter dated 19.08.2014, addressed to the Respondent/Complainant, denied to proceed with the claim of the petition as, what they observed, the petitioner had ‘no claim’. They, however, did not assign any reason for their taking such a decision.

The Appellants/OPs subsequently wrote a letter dated 03.09.2014 addressed to the Respondent/Complainant and assured the Respondent/Complainant of payment of admissible amount fairly and promptly. As gathered, the surveyor engaged by the Appellant/OP Insurance Company assessed a loss of Rs. 5,00,000/- but, the Appellants/OPs preferred to remain silent on the issue of sanction of any amount against the claim of the Respondent/Complainant. There was, as alleged, no positive result even after the issue of sanction being pursued by the Respondent/Complainant visiting the office of the Appellants/OPs time and again. The Respondent/Complainant then, finding no other alternative, filed the Complaint Case before the Ld. District Forum. The impugned judgment and order originated from the said Complaint Case.

The case was heard ex parte against the Respondent/Complainant.

The Ld. Advocate appearing on behalf of the Appellants/OPs submitted that the subject vehicle was registered as a goods carrying one but it was carrying passengers. As per registration, the sitting capacity of the vehicle was three but it was carrying seven passengers inclusive of the driver of the vehicle. In support of his claim of the vehicle’s overweight while the accident had taken place, the Ld. Advocate referred to the FIR at running page 44 lodged with the Gazole P.S, Malda as corroborative evidence.

The Ld. Advocate continued to submit that the above FIR indicated further that the passengers were carrying spawn. As he continued, the carrying of livestock in a vehicle needs a special permission as per provision of the MV Act, 1988. The Respondent/Complainant, as contended, did not take such permission for carrying the livestock.

In the light of the above, as the Ld. Advocate submitted, the Respondent/Complainant had no authority to submit any claim in respect of the subject vehicle.

The Ld. Advocate concluded with the prayer for allowing the Appeal setting aside the impugned judgment and order.

Perused the papers on record and considered submissions of the Ld. Advocate appearing on behalf of the Appellants/OPs. It appeared that there was no dispute as regards happening of the incident, coverage of the subject vehicle under Insurance policy, assessment of loss of the damaged vehicle, submission of claim etc. The crux of the issue appeared to have been developed with the reasons assigned for repudiation of the claim.

The claim appears to have been repudiated for reasons i) the goods carrying vehicle was being utilized for carrying passengers. ii) the vehicle was overloaded as the same was carrying passengers in excess. iii) the vehicle was carrying livestock without taking special permission for such carrying as per provision envisaged under the MV Act, 1988.

Going through document attached with the case record, we do not differ from the allegation of Appellants/OPs as regards violation of the policy clauses like carrying passengers in the goods carrying vehicle and overloading but, at the same time, do not accept those as violation of fundamental clauses leading to absolute disentitlement of the policy claim.

We, however, do not agree with the direction in the impugned judgment and order towards reimbursement, in full, of the loss assessed by the surveyor. In this context, we like to rely on the decision of the Hon’ble Supreme Court in the matter of [Amalendu Sahoo—Vs—Oriental Insurance Company Ltd.], reported in II (2010) CPJ 9 (SC) wherein the Hon’ble Apex Court has been pleased to observe that even in cases where there is any breach of warranty conditions of the policy, an amount up to 75% of the admissible claim can be agreed to.

Bowing before the above guidelines prescribed by the Hon’ble Apex Court, we intend to allow the Respondent/OP a claim of 60% of Rs. 5,00,000/-, being the loss sustained by the Respondent/OP as per assessment made by the surveyor engaged by the Appellants/OPs.

Hence,

ORDERED

that the Appeal be and the same is allowed in part. The Appellants/OPs are directed to pay to the Respondent/Complainant an amount of Rs.3,00,000/-. The said amount is to be paid without any interest within a period of 45 days from the date of the instant order, failing which, simple interest @ 9% p.a. would accrue to the said amount from the date of default till the entire amount is fully realized. Impugned judgment and order stands modified accordingly.